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You Don't Have to Pay CA Law Grads Awaiting the Bar Overtime

By Cynthia Hsu, Esq. on August 23, 2011 | Last updated on March 21, 2019

California law grads waiting for their bar results are considered "professionals" and are exempt from overtime pay, according to a recent decision by the First District Court of Appeal in San Francisco.

For California firms that employ post-bar clerks, this decision paves the way for a clearer interpretation of the Fair Labor Standards Act rules.

Workers who are considered "professionals" are often excluded the "overtime pay" requirement under the FLSA.

The case was brought by Matthew Zelasko-Barrett, who worked as a law clerk for law firm Brayton-Purcell between the years of 2007 and 2009. He passed the bar exam in 2009, according to the San Francisco Chronicle.

He argued that since he was waiting for his bar results, he was not a professional that was exempt from overtime pay.

Zelasko-Barrett did many things that a full-fledged attorney did during his time at Brayton-Purcell. He conducted legal research, drafted documents and interviewed witnesses. He also contributed to many of the firm's cases.

Though Zelasko-Barrett's contributions were similar to an associate attorney's work, none of the documents were made under his name and he was supervised by an attorney, the San Francisco Chronicle reports.

The court ruled against him in part because his work duties entailed many intellectual duties. He wasn't simply doing clerical work and because he exercised a wide discretion during his duties.

The ruling was unanimous, and while it's only California case law for now, it may have wider implications.

If post-bar clerks raise the same issue in other jurisdictions, it's possible that other states will look to this California case as a persuasive authority.

At the least, it does pave the way for more clear-cut rules regarding law grads and overtime in California.

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