As we mentioned in Morning Docket, a San Francisco appeals court decided that law clerks still waiting to pass the bar are ineligible for overtime pay.

Yay, sanity.

Oh, I know struggling law grads out there are eager to wring every last penny they can out of their employers. But if you step back and think about it, paying law clerks overtime is just stupid. The nature of the work doesn’t lend itself to an overtime compensation structure — to say nothing of the fact that the client who paid time-and-a-half for “overtime” legal work would be the dumbest client ever.

Sorry, law clerks. Even though many of you don’t use it, you guys have way too much independent discretion to get overtime….

Overtime is for people who don’t have the autonomy to set their own work schedules. Lawyers, even young ones still trying to pass the bar, simply don’t fall into the category. From the San Francisco Chronicle:

If you’re a law school graduate doing legal work at a firm while waiting to take the bar exam, a state appeals court says you’re already a member of a “learned profession,” which means the firm doesn’t have to pay you overtime.

Professionals have long been exempt from California’s wage rules that require overtime pay and certain other benefits, such as daily meal periods and rest breaks, for most employees…

The commission said its new category covered anyone whose work is mainly intellectual, or requires advanced knowledge, and who “regularly exercises discretion and independent judgment.” The state court said that description fit Matthew Zelasko-Barrett, who worked as a law clerk for the Brayton-Purcell firm in Novato from 2007 to 2009, when he passed the bar exam.

This is an entirely fair distinction. Overtime rules, fundamentally, are there to protect workers from outrageous demands. You can’t force a person to work Biglaw hours without paying them more than their regular rate.

Lawyers, and nobody is going to like hearing this, are doing what they do by choice. When you ask your secretary to stay late and help you turn some documents, he’s not really free to say no. He’s got to do what you say, in the manner in which you say it. When you are asked, by a client or a judge or a partner, to stay late, you have some discretion. Fine, you can’t always say “no,” but you can often complete your task in a way that makes sense to you. You can leave and come in early the next day. You can take the work home with you. You might be able to delegate some of it to other people. You have choices.

At least on paper. In practice, well, the person who shows up to a law firm thinking it was a 40 hour per week job didn’t do his market research.

Law grad exempt from overtime, appeals court rules [San Francisco Chronicle]


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