Pharmaceutical Sales Reps
Drug Sales Reps Overtime Pay Laws
Under the FLSA, to qualify for the outside sales employee exemption, the employer has the burden of proving that the following test are met to avoid paying drug sales reps overtime:
- The drug sales reps’ primary duty must be making sales or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and,
- The sales rep must customarily and regularly be engaged away from the employer’s place or places of business
If the pharmaceutical sales reps don’t meet both of these tests, the drug companies are required to pay the employees overtime for all hours worked in excess of 40 in a workweek. In addition, the California Labor Code requires that the companies pay the drug sales reps overtime for working more than 8 hour days or 7 days in a row in the same workweek. Finally, the employees may be entitled to penalties and interest for not being paid overtime even though they worked overtime hours.
The primary argument for the pharmaceutical sales reps is that they don’t actually “MAKE SALES” because at most the drug sales reps can get a doctor to agree to prescribe the medication as needed by the patients, which is of course on a case by case basis. Since the drug sales reps are not making sales but rather promoting the drug, they argue that they should be entitled to overtime pay.
The issue is so big in the employment law world that the Suprem Court of the United States has granted certiorari, meaning the Supreme Court has decided to take on the issue. On April 16, 2012, there was Oral argument in the Supreme Court of the United States. It is anticipated that the Supreme Court will render a decision by June 2012 as to whether or not pharmaceutical sales reps are entitled to overtime pay.
Our employment law attorneys are representing 5 different groups of employees against drug companies. These actions all seek overtime pay either under the California Labor Code and/or Fair Labor Standards Act. Contact our drug sales reps overtime pay attorneys today to learn about how you can join or start an action on behalf of drug sales reps for overtime pay. Ask our attorneys about how named representatives in these class action lawsuits may be eligible for an additonal service award* from the court.