Archive for September 12th, 2010

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Are Pharmaceutical Sales Reps Entitled to Overtime Pay?

September 12, 2010

The Commonly held belief is that outside sales representatives do not get overtime pay.  This is because the federal overtime law, the Fair Labor Standards Act (FLSA), specifically exempts outside sales reps from being paid overtime pay.  Normally, the FLSA requires an employer to pay its employees one and ½ times their regular rate of pay if that employee works more than 40 hours per week.

In order for an outside sales representative to be exempt from receiving overtime pay, there are several requirements that must be met.  These are:

1. The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and

2.   The employee must be customarily and regularly engaged away from the employer’s place or places of business.

At first glance, it seems as if a pharmaceutical sales representative would not be entitled to overtime pay.  However, the distinction lies in how the FLSA defines “primary duty” and “making sales”

“Primary duty” means the principal, main, major or most important duty that the employee performs. Determination of an employee’s primary duty must be based on all the facts in a particular case, with the major emphasis on the character of the employee’s job as a whole.

“Making sales” includes any sale, exchange, contract to sell, consignment for sales, shipment for sale, or other disposition.  What is missing from either of these definitions is an exemption for a person that merely urges doctors to prescribe certain drugs, but does not actually sell anything to the doctor.

A recent case out of the 2nd Circuit Court of Appeals held pharmaceutical sales representatives that merely urge doctors to prescribe certain drugs, under strict guidelines from their employer, are entitled to overtime pay.  In In Re Novartis Wage and Hour Litigation, the Court states that a pharmaceutical sales representative that meets with doctors to obtain a doctor’s commitment to prescribe a certain drug does not engage in “sales” as contemplated by the FLSA.

Novartis also tried to argue that their “sales” reps were exempt from overtime pay because of the administrative exemption.  However, the Court stated that the reps did not exercise discretion and independent judgment simply because the reps could answer the doctor’s questions about the medications.  Based upon this holding, it is anticipated that drug companies will make changes to their sales representatives responsibilities so as to avoid having to pay their reps overtime pay, despite the long hours worked by these reps.

For more information about overtime pay for pharmaceutical reps, or other questions relating to whether a certain employee is entitled to overtime pay, contact attorney Joseph M. Maus at The Maus Law Firm, (866) 556-5529 or visit www.mauslawfirm.com

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Tricks That South Florida Employers May Use To Get Out Of Paying Overtime Wages

September 12, 2010

Everyone is trying to stretch their money during these uncertain economic times, including employers. In fact, some employers will go out of their way to try to get around the overtime wage laws so they can avoid having to spend more money on worker salaries. You may have been wrongly denied overtime and might not even be aware of it.

Here are a few tricks that employers may try to use to get around paying South Florida overtime wages:

  • Even if they don’t know the details, every employer has a general idea of state and federal labor laws and they are aware that employees are entitled to overtime. In order to avoid paying overtime, they may not give the worker "employee" status and may instead call workers "independent contractors". Anyone can be called an independent contractor but there is a legal standard that designates an employee from an independent contractor. If the employer controls the time and manner of how your work is performed, supplies you with all the materials needed to do your job, and pays you on an hourly or salary basis, you are most likely an employee, not an independent contractor.
    • Another way to get around the labor law is to call the employee a manager, which means they are exempt from overtime wages. If you have the power to hire and fire workers and more than 50 percent of your work time is devoted to management duties, you may be exempt from receiving overtime wages. However, if your management responsibilities mean you spend a high percentage of your workday engaged in non-management tasks, such as answering phones and filing, and you only are responsible for duties such as cashing out a register at the end of a shift or carrying an over-ride key, you may not actually be a manager and may not be exempt from overtime pay in South Florida.
      • Employees under H-1B status: H-1B is a nonimmigrant classification used by foreign workers who will be employed temporarily in a specialty occupation and it requires a sponsoring U.S. employer. Many companies are increasingly hiring workers from overseas, particularly for the IT field, because the workers will settle for lesser wages. Oftentimes, the foreign worker is either unaware of or afraid to assert their rights, which allows an employer to get around the overtime wage laws.
        • If you must take unpaid breaks or if you find yourself being required to work through lunch, you may be owed overtime. An employer must pay you for breaks of more than 5 minutes and less than 20 minutes or if you are required to complete work-related duties during your lunch break, but must clock out for that lunch break..
          • With all the new communication technology out there, you may be required to check your company Blackberry or PDA, or answer emails or texts after work hours, which may entitle you to overtime pay.
            • If you are required to be ‘on call’ and must report to work on short notice, you may be entitled to overtime pay.
              • For many South Florida employees, the threat of losing their job is enough to make them overlook the overtime wages they should be getting but aren’t. However, you should be aware that the Fair Labor Standards Act (FLSA) prohibits an employer from punishing or firing an employee who has asserted his or her rights to overtime wages.

              Do you think you might have a South Florida overtime claim? Florida overtime attorney Joseph M. Maus can help you determine if your employer may owe you money. Call him at 1-866-556-5529, visit his website at http://www.mauslawfirm.com, or email him today. The Law Office of Joseph M. Maus and Associates has handled some of the largest South Florida overtime claims. Attorneys in their office were recently appointed in Federal Court as lead counsel in an Overtime Class Action against a large Fortune 500 Company. Call their offices today for a free consultation or for more information on South Florida overtime claims.

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