Remember when PwC laid off 500-ish 470 people in the Tampa area last year? The townies weren't impressed and the local press, including the St. Petersburg Times, was all over the firm about it. At the time, PwC insisted that they would create more jobs in the area to make up for things. Frankly, no one took them seriously and probably chalked it up to "something PR has to say." So it was a nice surprise to learn that the firm is not only hiring 200 new people but they're spending $78 million on a "build-to-suit building." Typically when these kinds of things happen, the local and state governments like to subsidize a bit of the project and this situation is no different. The firm is reportedly receiving $2 million but a source at PwC, who wants to keep their identity secret because DUH, told me that it's actually closer to $1.2 million. It consists of approximately $800k and some change from the state of Florida and $1.1 million (yes, I know the math doesn't work you twerps, so save it, they didn't have exact numbers) from the city and county, the latter being part of the Premier Business Bonus Program. Rather than simply say "Thank you, PwC for bestowing your autumnal hues on our otherwise hot, sticky, green and tan town…oh, and the jobs are okay too," the Tampa Bay Businees Journal is poking around the "$2 million" in subsidies. The focus of the story caused our source to be a little perplexed since, you know, the firm is spending nearly $80 million and hiring 200 people. Not to mention the people that will build the $78 million whathaveyou. Did they think the current PwC employees were going to bring their tool belts and slap together some framing and drywall? Plus, the firm doesn't get the $2 million $1.2 million unless they spend the $78 million and they hire the 200 people. 197 simply won't do (I asked). Does it make up for the 500 layoffs? Maybe not. But a story about subsidies that probably wouldn't pay for Dennis Nally's annual travel? There's far more interesting things going on in Florida. I assure you.
~ Update below with link to audio of the proceedings
Last month we caught you up on Campbell v. PricewaterhouseCoopers, the wage and hour lawsuit filed by employees of the firm, claiming to be non-exempt and thus available for overtime. Oral arguments were heard today at the 9th Circuit Court of Appeals in San Francisco and it marks the most recent step in a case that could have wide repercussions in California. Francine McKenna has a good rundown over at Forbes, including sta��������������������rshaw, the plaintiffs’ attorney. PwC and their lead counsel, Dan Thomasch of Orrick, have declined to comment at this time.
In today’s proceedings, both sides were allowed to make their arguments and answered questions from a three-judge panel. We’ve obtained the briefs for both sides and we’ll give you a taste of each. First, from the plaintiffs:
PwC argues that Attest Associates satisfy the Professional Exemption because—notwithstanding the routine and nondiscretionary nature of their work—PwC claims that they are functionally indistinguishable from fully licensed accountants, doctors, lawyers, and engineers. As a matter of law, however, the text, structure, and drafting history of the Professional Exemption limit its application to licensed accountants, and Associates are not licensed. Second, PwC argues that Attest Associates satisfy the Wage Order’s Administrative Exemption because they work “under only general supervision” despite up to six layers of managers who are responsible for Associates’ work. That argument fails, however, because PwC has not pointed to sufficient evidence to create a triable issue of fact that Associates “work along specialized or technical lines”—much less that they do so “under only general supervision”—as required by the Administrative Exemption.
The argument goes into detail from there addressing three key arguments: 1) The Professional Exemption Does Not Apply to Attest Associates; 2) The Administrative Exemption Does Not Apply to Attest Associates; 3) The Rules Governing Professions Other Than Accounting Do Not Help PwC. You can see the brief in its entirety on the next pages.
PwC addresses all three arguments in their brief; this is a portion from the brief’s introduction:
Put simply, nothing in the Wage Order precludes unlicensed accountants from being shown to be exempt under subsection (b) of the Professional Exemption. Plaintiffs’ argument that the “drafting history” of the wage order at issue shows an intention on the part of the [Industrial Welfare Commission] to prohibit unlicensed accountants from being professionally exempt should be rejected, because the language and structure of the Professional Exemption are not ambiguous, and contain no such prohibition. Even the District Court did not accept Plaintiffs’ tortured reading of the text of the Professional Exemption, or claim to find unambiguous intent on the part of the [Industrial Welfare Commission] to exclude from eligibility for the Professional Exemption all unlicensed members of the accounting profession — and inevitably by extension, all unlicensed lawyers, doctors, dentists, optometrists, architects, engineers, and teachers. Doing so is flatly contrary to the overriding principle governing application of exemptions from overtime provisions, which is to consider individual employees’ work duties.
And their brief outlines a direct counter to the plaintiffs’ brief: 1) Plaintiffs’ Argument That Accountants Can Only Qualify for a Professional Exemption Under Subsection (a) Is Unsupportable 2) PwC Is Entitled to Show That Its Attest Associates Satisfy the “General Supervision” Requirement of the Administrative Exemption; 3) The Impact of the District Court’s Order Is Not Limited to the Profession of Accounting.
So what we’ve got here is…failure to agree on how the ambiguous (or not) California law is and how it applies specifically to unlicensed audit associates. Are they really just cogs in the wheel, bowing to their superiors as the plaintiffs argue? Or are they responsible professionals who are engaged in a challenging occupation that warrants exemption? The 9th Circuit will have transcripts and audio from the proceedings available on its website at some point tomorrow and we’ll update this post with them when they’re available. As for a resolution, it will be several months before we find out what the 9th Circuit rules and then, there’s still a trial to be had. Stay tuned.