(Part 2)
LAST week, we discussed the case of a class of “Review Appraisers,” employed by Bank of America (BoA), who recently obtained approval of a settlement for $5.8 million. The employees sued BoA for alleged overtime violations, itemized wage statement violations, meal and rest period violations, waiting time penalties, and civil penalties against the employer.
The employees, who primarily proofread the appraisal reports generated by staff appraisers, claimed that the employer misclassified them as ‘exempt’ from overtime and from taking meal and rest breaks. As appraisers, they often work more than 60 hours per week, with barely any meal or rest breaks, without compensation.
One of the arguments the employer made is that the appraisers are exempt employees because they are learned professionals. The employees argued that the learned professional exemption does not apply to them because this exemption relates to occupations where an advanced degree or prolonged course of academic study is required (such as in the case of doctors, attorneys, CPAs, etc.). Appraisers generally can become appraisers with only a high school diploma, several weeks of classes and some on-the-job training.
For employees to be exempt from overtime pay under the Learned Professional Exemption, the employees must be paid the monthly salary equivalent to no less than twice the state minimum wage. More importantly, the employees must regularly exercise discretion and independent judgment in the performance of their duties. Employees under the Learned Profession exemption are primarily engaged in work that either:
(A) requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, or
(B) is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical, or physical work) and is of such character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.
Employees described as “learned” professionals typically possess an advanced degree based on a prolonged course of specialized intellectual study. In California, the eight recognized professions are law, medicine, dentistry, optometry, architecture, engineering, accounting, and teaching.
Given California’s laws on overtime, it appears that the work of individuals in the learned professions must be predominantly intellectual in character, and includes the exercise of wide-ranging discretion and judgment, as opposed to work that is routine mental, manual, mechanical, or physical.
The term ‘customarily acquired by a prolonged course of specialized intellectual instruction’ limits the exemption to professions where specialized academic training is a requirement to enter into the profession. The employee meets this criteria if the employee has the appropriate academic degree. It may also apply to employees who have substantially the same knowledge level and the same work as employees with degrees, but who attained the advanced knowledge through a combination of work experience and intellectual instruction.
Because the area of the law pertaining to overtime exemptions is highly technical, employees should not simply accept the employer’s designation that they are exempt from overtime. If they exercise limited discretion and judgment in their work, or they seem to be doing the same routine tasks on a daily basis, they may wish to consult with an attorney to find out if they are owed back wages after all.
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The Law Offices of C. Joe Sayas, Jr. welcomes inquiries about this topic. All inquiries are confidential and at no-cost. Atty. Sayas’ Law Office is located at 500 N. Brand Blvd. Suite 980, Glendale, CA 91203. You can contact the office at (818) 291-0088 or visit www.joesayaslaw.com.
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C. Joe Sayas, Jr., Esq. is trial attorney who has obtained several million dollar recoveries for his clients against employers and insurance companies. He has been selected as a Super Lawyer by the Los Angeles Magazine, featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements, and is a member of the Million Dollar-Advocates Forum.
