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 http://www.bls.gov/oco/ocos119.htm.  Employment of sales representatives, wholesale and manufacturing, is expected to grow by 7 percent between 2008 and 2018. http://www.bls.gov/oco/ocos119.htm. 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.

Employee Reporting Back to Work for Second Shifts? Contact Experienced Overtime Wage Lawyers

Reporting time compensation, commonly known as "call back pay" provides wages to nonexempt employees who report to work but are permitted to work less than half the hours of their regular shift due to scheduling conflicts or inadequate notice by the employer. Employees must be paid for half the usual or scheduled day's work, but in no event for less than 2 hours nor more than 4 hours, at their regular rate of pay. Wage Order Nos. 1-2001-16-2001, §5(A) (8 Cal Code Regs §§11010-11160, §5(A)); see §5(C)-(D) for exceptions.

If an employee is required to report for work a second time in any one workday and is furnished less than 2 hours of work on the second reporting, the employee must be paid for 2 hours at the employee's regular rate of pay. Wage Order Nos. 1-2001-16-2001, §5(B) (8 Cal Code Regs §§11010-11160, §5(B)).

At Blumenthal, Nordrehaug & Bhowmik, our California employment law attorneys represent workers who are called back for second shifts in a single day but not given extra compensation for that reporting time. Additionally, our experienced overtime wage lawyers represent loss prevention and other similar employees.

Mutable Timekeeping Systems

Often times, employers use mutable timekeeping systems. These are problematic for two reasons. Foremost, mutable timekeeping systems are problematic because the timekeeping systems are not capable of recording and reporting all of the hours that employees work. Second, these types of mutable timekeeping systems are problematic because they are subject to manipulation.

1. Timekeeping Systems Not Capable of Tracking Your Hours
In California, employers are suppose to pay non-exempt employees one and a half times their regular rate of pay for all hours worked in excess of 8 hours in a workday, 40 hours in a workweek, or the first 8 hours of work on a seventh consecutive day or work. In addition, employers are required to pay non-exempt employees double the regular rate of pay for working more than 12 hours in a single workday or for working more than 8 hours on a seventh consecutive workday.

When employers have mutable timekeeping systems, often times the timekeeping systems are not capable of tracking all of the overtime hours that employees work. This is particularly the case when employees are required to perform job duties for their employers away from the employers place of business.

2. Timekeeping systems subject to manipulation.
 The second major problem with these mutable timekeeping systems is that they are subject to manipulation. As a result, managers and supervisors can alter the amount of time that employees work. For instance, suppose you worked 9 hours in a workday. The manager can go into the time system and mark it down as though you worked 8 hours. Then the employer can try to make a comp time deal with you, saying something like "you worked an extra hour yesterday so you can leave an hour early today." However, this is a problem because the employee should be receiving overtime wages for working 9 hours the previous day.

At Blumenthal, Nordrehaug & Bhowmik, our employment law attorneys represent workers throughout the state of California in actions to recover wages from employers based on the employer's illegal pay practices.

Call (858) 551-1223 in San Diego, Los Angeles, or Northern California.

Administrative Exemption Under California Labor Laws- Are you Misclassified?

Industrial Welfare Commission, ICW Wage Order No. 4, and California Labor Code Section 515 lays out the requirements which must be complied with to classify an employee as exempt from applicable labor laws. For an employee to be exempt from these rules as a bona fide “administrator,” all the following criteria must be met and the Employers have the burden of proving that:

(a) The employee must perform office or non-manual work directly related to management policies or general business operation of
                 the employer; and,
(b) The employee must customarily and regularly exercise discretion and independent judgment; and,
(c) The employee must regularly and directly assist a proprietor or an exempt administrator; or,
(d) The employee must perform, under only general supervision, work requiring special training, experience, or knowledge, or,
(e) The employee must execute special assignments and tasks under only general
supervision; and,
(f) The employee must be primarily engaged in duties which meet the test of exemption.

Executive Exemption under California Labor Law

The Industrial Welfare Commission, ICW Wage Order No. 4, and Labor Code §515, sets forth the requirements which must be complied with to classify an employee as exempt from applicable labor laws. For an employee to be exempt from these rules as a bona fide “executive,” all the following criteria must be met and Employers have the burden of proving that:

(a) The employee’s primary duty must be management of the enterprise, or of a customarily recognized department or subdivision;
                and,
(b) The employee must customarily and regularly direct the work of at least two or more other employees; and,
(c) The employee must have the authority to hire and fire, or to command particularly serious attention to his or his recommendations
                on such actions affecting other employees; and,
(d) The employee must customarily and regularly exercise discretion and independent judgment; and,
(e) The employee must be primarily engaged in duties which meet the test of exemption.

If you think that you or your fellow employers currently are or formerly were misclassified as exempt from overtime wages based on the executive exemption, you may be entitled to overtime wages for all of the hours you worked. It does not matte if your employer classified you as an exempt salaried employee if you were misclassified. Visit http://www.bamlawca.com for further information on the executive exemption.

California Professional Exemption From Overtime

The Industrial Welfare Commission, ICW Wage Order No. 4, and Labor Code §515,
set forth the requirements which must be complied with to classify an employee as exempt from applicable labor laws. For an employee to be exempt from these rules as a bona fide “professional,” all the following criteria must be met and the Employers have the burden of proving that:

(a)     The employee is primarily engaged in an occupation commonly recognized as a learned or artistic profession. For the  
          purposes of this subsection, “learned or artistic profession” means an employee who is primarily engaged in the  
          performance of:

 (1)        Work requiring knowledge of an advanced type in a field or science or learning customarily acquired
  by a prolonged course of specialized intellectual instruction and study, as distinguished from a
 general academic education and from an apprenticeship, and from training in the performance of
  routine mental, manual, or physical processes, or work that is an essential part or necessarily                                      
  incident to any of the above work; or,

(2)      Work that is original and creative in character in a recognized field of artistic endeavor, and the result of which depends primarily on the invention, imagination or talent of the employee or work that is an essential part of or incident to any of the above work; and, (3) Whose work is predominately intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work) and is of such character cannot be standardized in relation to a given period of time;

(b) The employee must customarily and regularly exercise discretion and
independent judgment; and,

(c) The employee earns a monthly salary equivalent to no less than two (2) times the state minimum wage for full-time employment.

If you think that your current or former employer may have misclassified you as exempt from overtime based on the professional exemption, contact Blumenthal, Nordrehaug & Bhowmik now by calling (858) 551-1223 for a free consultation. You may be entitled to recover your overtime wages plus damages, regardless of whether or not you were paid a salary.

Technicians and troubleshooting Employees May Be Entitled to Overtime In California

Employees in technician positions performing services in the field that have been given titles like "field technician", "service technician", 'technician'', "service engineers", "service professional", "customer service engineer", or "installation and customer solution engineers" may be exempt from overtime under the California labor code despite the fact that the employer classifies them as exempt.

The duties that are performed by these technician employees primarily involve
the day to day labor to maintain, repair, troubleshoot, build and monitor equipment for their employer. The duties for these employees also sometimes require the performance of non-office, manual labor, including but not limited to carrying, lifting, bending and repairing, and the physical installation and maintenance of security, computer, electrical, software, and/or hardware components and parts. As a matter of course, technical problems often arise with this equipment at all hours of the day and at all hours of the night.
Responding to these problems and maintenance demands are not only performed throughout the normal workday, but also pursuant to an on-call policy in many cases. These employees may still be responsible to respond to calls and perform troubleshooting work to resolve the problems at issue during specified on-call work hours. All of these job duties performed by the technicians are non-exempt job duties under California law and federal law. In many cases, these technician employees perform these functions, and all duties, according to established company policies, protocols, and procedures.