recent decision, the Second Circuit determined that Novartis Pharmaceutical Corps representatives
were not covered by the “outside sales” exemption under the
Fair Labor Standards Act and hence, were entitled to overtime pay.
Pursuant to the FLSA, employees who are not exempt must be paid at a rate
of one and one half times their regular rate of pay for all hours worked
in excess of 40 hours in any workweek.
One of the biggest issues to arise under the FLSA is whether the work you
do is considered “exempt.” Generally, exemptions under the
FLSA fall into three main categories – executive, administrative,
Novartis, the company asserted that the representatives were covered by the administrative
exemption as outside sales employees. Under the FLSA, an “outside
salesman” is an employee whose primary duty is make sales or “obtaining
order of contracts for services.”
Judge Amayla L. Kearse, writing for the U.S. Court of Appeals for the Second
Circuit disagreed, reasoning that although a pharmaceutical representative
may be “actively engaged in persuading physicians to prescribe a
drug” the reps were not specifically making sales. As a result,
the reps did not fit within the “outside salesman” definition
and were not exempt. Judge Kearse noted that although her interpretation
differed from other federal district courts’, it more closely followed
the Secretary of Labor’s interpretation of this provision.
Further, Kearse noted that the skills characterized by the company as evidence
of the reps’ exercise of discretion were actually developed and/or
honed in Novartis training sessions. These skills were not evidence of
independent thinking and judgment, but rather actions further bolstering
the reps’ claims that their work was strictly controlled by the company.
Determining whether a particular job is covered by the FLSA can be confusing.
As this case demonstrates, even federal courts may disagree on what job
duties are considered exempt.
For more information, or if you believe you have been denied all the overtime
compensation you may be deserve, please contact
The Buckley Law Firm, LLC, committed to employee’s rights.