If you are a pharmaceutical sales representative you may be entitled to overtime

That is, of course, depending upon where you live.

If you live in Connecticut, New York or Vermont you are entitled to overtime.  But if you live in Arizona, California, Idaho, Montana, Nevada, Oregon and Washington you are not.

In two separate class actions two different interpretations were given to the definition of an outside sales employee in the pharamaceutical industry.  The Second Circuit (Connecticut, New York and Vermont) held that pharmaceutical sales representatives are not outside sales employees and therefore are not exempt employees and should be paid overtime for working more than 40 hours per week.  The Ninth Circuit (Arizona, California, Idaho, Montana, Nevada, Oregon and Washington) held just the opposite, deciding that pharmaceutical sales representatives are outside sales employees and therefore are not entitled to overtime.

The courts differed on the interpretation of an outside sales representative in the pharmaceutical industry. Both courts agreed that the pharmaceutical reps cannot sell medications to patients.  But the Second Circuit considered the fact that the sales reps do not actually make the sale and considered these individuals to be engaged in marketing or promotion of the product to doctors and others.  The Ninth Circuit, on the other hand, held that the sales reps were selling the product in the only way the law allows to doctors and others who influence a sale.

Most jobs are governed by the Fair Labor Standards Act (“FLSA”). Some are not. Other jobs, while governed by the FLSA, are considered “exempt” from the FLSA overtime rules.  Please see our prior post.  The FLSA contains an exemption from the payment of both minimum wage and overtime pay to any employee employed as an “outside sales employee”.  But the interpretation of “outside sales employee” can vary and whether a job falls within this particular exemption of the FLSA is not always so clear cut.

Are you a sales representative for a pharmaceutical company in Connecticut, New York and Vermont and denied overtime?  Please tell me your story.

Abbey Spanier, LLP is located in New York City, is a well recognized national class action and complex litigation law firm.