www.pharmalot.com and www.fiercepharma.com are both reporting striking new developments in the ongoing battle between pharmaceutical reps and the Schering-Plough Corporation. This hotly contested overtime case is about whether these sales reps should be entitled to overtime pay pursuant to the Fair Labor Standards Act (FLSA). Schering-Plough has been dealt blow after blow in its legal quest to avoid paying reps for overtime.

Schering-Plough is not alone in its despair. The U.S. Supreme Court recently decided not to hear an appeal from fellow pharmaceutical giant, Novartis, in a nearly identical case.

The two articles discuss the nitty-gritty: essentially, the FLSA has two exemptions. These are situations in which an employer (like Schering-Plough) might not have to pay overtime. A federal court already ruled against Schering-Plough on one of the points. And these articles discuss how federal judge Janet Bond Arterton rejected the second exemption.

At issue was whether reps have the ability to exercise discretionary, independent judgment. Judge Arterton wrote that the reps “do not design the promotional materials to be used in their sales calls, nor set the overall market strategy for products, nor develop the ‘core message’ to be delivered during meetings with healthcare professionals.” She made an analogy to clothing store employees. As the pharmalot.com article reported: “The rep is more akin to someone who helps the customer find the right merchandise, but is not involved in myriad decisions or activities that would preclude overtime pay.”

So, another victory for the sales reps, but it’s by no means the end of the line.

If you or someone you know works or worked as a sales rep for a pharmaceutical company and would like to discuss this case and how it might relate to you, feel free to connect with the team at Joseph, Herzfeld, Hester & Kirshenbaum at 866-348-7394 or via our contact page, or by email to info@jhllp.com