Posts Tagged ‘exemption’

A federal appeals court last July ruled Novartis reps are not exempt from overtime provisions of the Fair Labor Standards Act and, therefore, should be paid overtime. The same court also upheld a similar decision reached two years ago against Schering-Plough by a federal court, which denied a motion to dismiss a case brought against the drugmaker by some of its sales reps.

The decision against Novartis and Schering-Plough was made by the Second Circuit, which presides over territory where other lawsuits have been filed against Pfizer, GlaxoSmithKline, Abbott Laboratories and Bristol-Myers Squibb. As a result, the Supreme Court decision suggests that sales reps are likely to win their cases in these jurisdictions. However, this will not effect, for now, a recent ruling by the Ninth Circuit, which ruled in favor of Glaxo that sales reps do not qualify for overtime pay.

The Second Circuit found that sales reps are not exempt from overtime provisions of the Fair Labor Standards Act. The FLSA’s overtime compensation requirement doesn’t apply to employees who work as outside salespeople, but the law does require employers to pay overtime for hours worked beyond 40 hours a week, unless a FLSA exemption applies.

Drugmakers argue their sales reps are, indeed, outside salespeople who close sales because the primary customer is the physician. But in 2009, the US Department of Labor added an unexpected twist to the debate by filing an amicus brief with a federal appeals court contending that a lower court was wrong to toss their lawsuit.

So if you have worked as a pharmaceutical sales representative, you may be entitled to be paid overtime, but don’t delay, since typically you can only seek overtime up to three years from the date you file your lawsuit. For analysis of any of your overtime claims, feel free to contact Scott Behren and the Behren Law Firm which has extensive experience in litigation of overtime claims under the Fair Labor Standards Act (FLSA).