October 17, 2021

Volume XI, Number 290

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October 15, 2021

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Law Clerk's Overtime Exemption Depends on Duties Performed

A law school graduate working in a law firm before becoming licensed to practice law is an exempt professional under the California analogue of the FLSA professional exemption, a California court of appeal ruled on Wednesday. This decision is instructive because the court did not conclude that law clerks are categorically exempt or non-exempt from overtime, but rather looked to the duties the law clerk performed.

The clerk performed tasks customarily performed by junior attorneys. Although he was supervised by a licensed attorney and did not sign his name to pleadings, he drafted pleadings and discovery demands and responses, did legal research and drafted memoranda of points and authorities and supporting declarations, interviewed witnesses, assisted in deposition preparation and interacted with opposing counsel concerning discovery issues. The court found that these responsibilities required sufficient exercise of discretion and judgment to satisfy the exemption (the relevant portion of which is almost identical to the FLSA). In contrast, some law clerks perform work that is more clerical, administrative or routine in nature. Based on the court’s reasoning, these law clerks may not qualify for the exemption.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume I, Number 235
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