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Keep an Eye Out for Court’s Ruling on Pharmaceutical Sales Rep. Case

Posted in Class Actions, Highlight, Litigation, Wage & Hour

The bill's anti-retaliation provisions appear to apply to all "employees".

The U.S. Supreme Court yesterday heard arguments over whether pharmaceutical sales reprsentatives were properly classified as exempt (from overtime) because they fall within the “outside sales” exemption of the nation’s wage & hour laws.

The plaintiffs said that they were not properly classified because, while the representatives do a lot of tasks, the one thing that they don’t do is actual “sales”.   Rather, they encourage doctors to write prescriptions for their patients to buy their company’s drugs.

You can read the entire transcript here and, as always, check out the excellent SCOTUSBlog for further details.     

The New York Times reported that a number of justices (including the “liberal” ones) expressed some skepticism with the employees’ arguments.   

Justice Ruth Bader Ginsburg suggested that focusing solely on whether there were sales was a mistake. She said the representatives had striking autonomy.

“They don’t clock in and out,” she said. “They work outside the workplace. After they’re trained, they have minimal supervision.”

“It includes dinners,” she said to the plaintiffs’ lawyer, Thomas C. Goldstein. “It may be conventions. Entertainment. Maybe golf. If you’re right, would the time on the golf course get time and a half?”

I’ve previously covered this topic in some prior posts here and here

The transcript makes for interesting reading. In one instance, the government’s lawyer noted something that hadn’t been discussed before– that the Department of Labor was asked for an opinion back in 2007 about the practice.  It didn’t provide one.

JUSTICE SOTOMAYOR: I saw in the briefing hundreds of opinion letters by hundreds of different industries. Outside of this 1945 letter, did anybody else, any other pharmaceutical company, ever set out for the government or seek an opinion letter that you’re aware of?

MR. STEWART: I’m aware of only one instance. I think this is not a matter of public record, but there was one request in, I believe, December of 2007, for an opinion to the effect that the detailers [pharmaceutical sales representatives] were covered by the outside salesman exemption. DOL never responded one way or the other.

A decision is expected by late June 2012.