Often, employers ask their outside labor counsel to review job descriptions or other material to provide an opinion on whether a job, or group of jobs, should be classified as exempt from overtime requirements. Such efforts would seemingly be a classic example of a privileged attorney client communication made for the purpose of providing legal advice.
In a recent case out of California state court, however, this answer was not so clear at the trial and appellate level, who both required the employer to hand over a redacted version of such a letter in a class action overtime suit. The employer took the case to the California Supreme Court, who rightfully weighed in and made clear that such opinion letters are privileged and should not be subject to discovery.
This opinion is good law for a number of reasons, not the least of which is that it encourages employers to do the right thing - police themselves. Employers should not be punished by seeking out legal advice on whether their actions are correct. Moreover, determining the applicability of overtime exemptions can sometimes be as much art as science. If employers are afraid to discuss these nuances with their own lawyers, how can they ever hope to achieve compliance? Hopefully, this decision will set an example and avoid meritless discovery fights that often erupt in these ever growing wage and hour class actions.