Can I have an exempt hourly attorney in CA?

Carey · May 2004

Hatchetman, Gillian, and my other CA compadres helped me out in March, but I'm still having some trouble with reclassifying some of our PT exempt employees to non-exempt. Our legal group (of course) is having a problem with reclassing it's PT attorneys to non-exempt. HR is reluctant to treat them differently than other PT employees, so of course, I keep going back to Hatchetman's posts that some jobs may be exempt and still be paid hourly without jeopardizing exempt status - doctors, teachers, domestic servants - and hopefuly attorneys - under FLSA regulations.

Does anybody in CA know if this is allowed by the DLSE? I think it is because Hatchetman mentioned he has pscyhiatrists paid on an hourly basis. He quoted the federal regulation and I have checked the DLSE Enforcement Manual but can't find anything specific to CA.

I need to find it somewhere in writing that it is okay to pay exempt attorneys hourly.

Thanks for your help!

Gillian3 · May 2004

I don't think that you will find out anything in writing to this effect. As you know, DSLE regs are a bit different from FLSA, but I don't know of anything under DSLE which deals with the matter. There was a change in January which allows physicians to be hourly if they make $57.56 per hour or more, so that is closer to FLSA. I think that you are left with exempt/non-exempt under DSLE exemptions and attorneys would clearly fall under the professional exemption. I can't come up with any way to get around it.

Carey · May 2004

Thanks, Gillian. I did see the section that allows physicians to be paid hourly and was hoping there would be something somewhere about attorneys similar to what Hatchetman has described in the FLSA. Probably just wishful thinking!

Hatchetman · May 2004

I went through the IWC Orders and the DLSE Enforcement Policy Manual looking for any provision similar to 541.314 regarding attorneys (not having to be salaried to be exempt). I found none.

The IWC Orders establish a criteria that do require salary payment to professionals and the Order does not identify that teachers and lawyers can be paid an hourly rate and still be exempt as it does for practicing physicians.

Thus, it seems to me, unless you are in the public sector and can implement 541.5d of the federal regulations, attorneys need to be salaried in order to be exempt in California.

Of course to make double sure, since I am only offering a lay person's view, contact DLSE and ask for clarification.

Carey · May 2004

All I can say is Dang it! and thanks for checking for me Hatchetman. Guess our part-time attorneys will have to bite the bullet and become non-exempt along with the rest of them.

Don D · May 2004

Why would they not want to be, tsk tsk; Every attorney I've ever met or known says they work between 70 and 90 hours a week. And their creative billable hours practices backs them up. They stand to do quite well when you reclassify.

Carey · May 2004

Don I think you're right with most attorneys. We have two part-time attorneys who usually work less than 25 hours per week. One negotiated her salary when she started with us so that she's paid for a minimum of 25 hours/week (whether she works it or not) and then would get an hourly rate for any hours beyond that. She usually does not work 25 hours per week, so when she goes to hourly, her compensation goes down unless her hourly rate is adjusted. I think she is also having a hard time with being classified as non-exempt from a professional or prestige standpoint.

Can I have an exempt hourly attorney in CA?

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