Time to update your sales-rep overtime scorecard. A federal judge has ruled that a Boehringer Ingelheim rep is not exempt from overtime pay under the Fair Labor Standards Act, Pharmalot reports. It's just the latest decision in the ongoing legal battle between salespeople, who say they deserve OT, and drugmakers, who consider their reps "outside salespeople" who don't qualify.
In the Boehringer case, Judge Ursula Ungaro determined that plaintiff Graciela Palacios not only was not an outside salesperson, but that she did not fit the FSLA's administrative exemption, either. That exemption applies to management and professional types who are able to act on their own discretion and use independent judgment at work, as Pharmalot notes. Ungaro said the Boehringer rep's job did not fit that description.
The summary judgment comes after the U.S. Supreme Court passed on an opportunity to review appeals court decisions granting overtime to reps for Novartis and Schering-Plough. That choice essentially ratified the Second Circuit's ruling, which means that similar lawsuits in that Circuit--such as those pending against Pfizer, Abbott Laboratories and Bristol-Myers Squibb--are likely to go the same way.
But another circuit court--the Ninth--has ruled for GlaxoSmithKline in an OT dispute with reps. Amgen and Johnson & Johnson's Ortho-McNeil unit are on the no-overtime side of the ledger, too. How all the different suits in different jurisdictions will shake out remains to be seen. But some legal experts expect the Supreme Court to end up intervening at some point.
- see the Pharmalot post