The United States Supreme Court decided on Monday, June 18, that pharmaceutical sales representatives are exempt from the overtime pay requirements of the Fair Labor Standards Act (FLSA) because they satisfy the FLSA's "outside salesman" exemption. The case is Christopher v. SmithKline Beecham Corp.
Background of Case
Petitioners Michael Christopher and Frank Buchanan worked for respondent SmithKline Beecham as pharmaceutical sales representatives. In that role, the petitioners' primary duties were to meet with physicians, describe respondent's products and seek to obtain nonbinding commitments from the physicians to prescribe the respondent's drugs in appropriate cases. The petitioners alleged that they regularly worked more than 40 hours per week and that SmithKline Beecham violated the FLSA by failing to pay them overtime compensation.
Supreme Court's Decision
The case turned on whether pharmaceutical sales representatives are outside salesmen and thereby exempt from overtime under the FLSA and within the meaning of the regulations promulgated by the United States Department of Labor (DOL). In an amicus brief filed in the case, the DOL took the position for the first time that, in order to qualify for the outside salesman exemption, an employee must "actually transfer title to the property at issue" (which pharmaceutical sales representatives do not do). In a 5-to-4 decision, the Supreme Court concluded that the DOL's interpretation of its own regulations was not entitled to controlling deference, in part because the DOL's interpretation would impose potentially massive overtime pay liability for years of employment that occurred before the DOL ever announced its interpretation. The Court also noted that the pharmaceutical industry had classified its sales representatives as exempt employees for decades, and the DOL had never initiated any enforcement actions or suggested the employees were misclassified.
In the absence of controlling deference, the Court found the DOL's interpretation of its regulations - that a sale requires a transfer of title - unpersuasive. The Court then interpreted the FLSA itself to determine whether pharmaceutical sales representatives are exempt as outside salesmen. The FLSA's definition of "sale" includes the phrase "other disposition," which the Court interpreted to include arrangements that are tantamount, in a particular industry, to a "functional" sale of a commodity. Based on that interpretation, the Court concluded that pharmaceutical sales representatives make sales for purposes of the FLSA because they seek to obtain nonbinding commitments from physicians to prescribe specific medications. The Court also stated that pharmaceutical sales representatives bear all the external indicia of salesmen in that they are hired for their sales experience, are subject to minimal supervision and generally work in territories. In addition, the Court noted that the specific petitioners each received average compensation in excess of $70,000 per year, did not perform manual labor and are not the kind of employees that the FLSA was intended to protect.
In contrast, the four dissenting justices reasoned that pharmaceutical sales representatives should not be deemed outside salesmen under the FLSA because, within the ordinary meaning of the word, they do not actually "sell" anything to physicians. Instead, the dissenters viewed the representatives' work as promotional activities designed to stimulate sales made by someone else (i.e., the pharmacists who sell prescription drugs to patients).
Impact of Case
The Christopher decision is a significant victory for the pharmaceutical industry, which employs approximately 90,000 pharmaceutical sales representatives and which faced numerous misclassification/overtime pay lawsuits under the FLSA. More broadly, the Supreme Court's functional analysis of the outside salesman exemption, based on the employees' responsibilities in the context of the industry in which they work, is likely to make it easier for employers in a variety of industries to classify their sales employees as exempt.
Eric Sussman authored an article, "Conn. High Court Sheds Light on 'ABC' Test Application," which was published by Law360.
Patrick McCarthy and Christopher Stracco spoke about Project Labor Agreements on Friday, February 10, at the New Jersey Institute of Continuing Legal Education's Annual 2017 Redevelopment Law Institute at the Renaissance Woodbridge Hotel in Iselin, New Jersey.
On January 17, John DeSimone and Heather Weine Brochin presented a discussion about employment agreements and negotiation strategies at the NYU School of Medicine.
On October 10, James Bowers will share his personal perspectives on the History of Slavery and Race in South Carolina at UConn School of Law.
Day Pitney Alert
Michael Furey was quoted in an article, "The Biggest New Jersey Cases of 2016," which was published in Law360.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.