Wednesday, April 08, 2009

Attention Drug Reps - form an orderly line for back pay

On March 30th, a Connecticut Federal court found that the FLSA’s “Outside Salesman” exemption did not apply to Pharmaceutical Sales Representatives.

In issuing its ruling the court resisted the temptation to concede to legal fictions created by other courts in order to justify withholding overtime compensation.

Without getting too technical, at the core of the ruling is the fact that Pharmaceutical Sale Representatives do not actually sell anything.

In fact, federal and state law precludes them from making the very sales that would make them exempt. Rather, their role is to inform health care providers about the benefits of a given drug and to attempt to convince those professionals to write prescriptions. In order to be exempt under the FLSA as an outside salesman, you first have to actually sell something.

This decision means that thousands of Pharmaceutical Sales Representatives (sometimes referred to as “Drug Reps” or “Drug Representatives”) may be entitled to countless hours of previously unpaid overtime compensation.

Overtime compensation is calculated as one and a half times your regular rate of pay for those hours beyond forty worked in a single week. Typically, Drug Reps make a good living, but the work requires long hours, often well beyond forty in a single week. Thus, it is not a stretch to think individual Drug Reps might be able to recover tens of thousands dollars for unpaid overtime accrued over just a couple of years.

For those readers interested in reading the court’s 3/30/09 opinion in Kuzinski v. Schering Corp., it is currently available at 2009 U.S. Dist. LEXIS 25702.



Anonymous said...

Good news - my local FLSA office originally took my complaint 2008, and then cancelled/refused it after talking to his peers in New Jersey at the local FLSA. I called them my self and was told that they "would not be taking my complaint" and gave me all the legal fictions referred to here. We concluded that the folks in New Jersey were indebted to the major employers in the state.

Brian said...

Really interesting stuff, being in the pharmaceutical industry, it always wonderful too see that we're getting what we deserve.