Pharmaceutical Sales Rep. Not Making Overtime? Call 858.551.1223 Today!

On July 6, 2010 the Second Circuit Court of Appeals ruled in In Re Novartis Wage & Hour Litigation that Novartis' pharmaceutical sales representatives did NOT meet the requirements of the administrative or outside sales exemptions.

On August 11, 2010, just a month later, the Federal Labor Department also known as the DOL filed an non-party friendly brief in the Ninth Circuit case of Buchanan v. SmithKline Beecham Corp., declaring that pharmaceutical sales representatives are NOT exempt under the outside sales exemption or the administrative exemption. The 9th circuit has not yet made a ruling, but it is highly anticipated that it will make a decision in favor of the sales representatives not being exempt from overtime.

In 2008, about 24 percent worked more than 50 hours per week. See  Employment of sales representatives, wholesale and manufacturing, is expected to grow by 7 percent between 2008 and 2018. So as you can see, damages and substantial and only likely to increase.

The theory behind the sales reps not being exempt, in its most basic form, is this: The [reps] do not sell any [drugs] or obtain any orders for [drugs]. At most the [sales reps] can get the [doctors] to make a non-binding promise that they will [prescribe patients] the [drug]. As a result, the sales reps do not satisfying the sales exemption test because they are promoting rather than “Making sales.” 

At Blumenthal, Nordrehaug & Bhowmik, our California employment law attorneys represent Pharmaceutical Sales Representatives in actions for unfair employer practices such as discrimination, wrongful termination, harassment and unpaid overtime wages.