Schering-Plough Reps One Step Closer to Victory in Overtime Case

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 & Kirschenbaum at 866-348-7394 or via our contact page, or by email to info@jhllp.com


Lawsuits on the Menu for Restaurants

D. Maimon Kirschenbaum and Other Worker Advocates Appear to Be Changing the Culture of the NYC Restaurant Business

This article from Crain's New York, "For restaurants, more lawsuits on the menu," discusses the work of Joseph & Kirschenbaum's own D. Maimon Kirschenbaum - who has helped aggrieved restaurant workers collect more than $20 million in settlement money for things like wage and hour violations, failure to provide overtime, and theft of tips by management.

The article cites Mr. Kirschenbaum's 100-plus lawsuits on behalf of unfairly treated employees as a significant reason why the New York Department of Labor passed a Hospitality Wage Order. According to Crain's, "[This Order] went into effect in January and requires restaurants to keep extensive records of their employees pay, including tips."

The article also discusses the perspective of restaurant owners: "Lawyers who defend owners spare no vitriol in describing the cases filed against their clients, which they believe are fueled by a gold-rush mentality."

Mr. Kirschenbaum and other attorneys who bring these cases for aggrieved employees levy a simple counterargument: "restaurant owners who don't pay their employers correctly deserved to be sued."

Mr. Kirschenbaum also was quoted in the article on the topic of what happens when employees who don't have actionable grievances come to see him: "workers come to my office wanting to bring a case because they are mad about something, and I will see that there isn't one."

In other words, the idea that law firms are suing restaurants merely to collect lucrative fees doesn't hold up. If restaurants simply adhered to best practices, according to labor law, workers would not have grounds to take effective legal action.

The Crain's article suggests that plaintiffs may have "just about exhausted the pool of high profile and deep pocketed operators - most of whom have been sued... they are now shifting their attention to lesser known, smaller businesses."

The article also discusses the top 5 violations that lead to restaurants getting sued in New York City. These include:

  1. Failure to pay overtime
  2. Failure to provide "spread of hours" pay
  3. Theft of tips by management
  4. Misappropriation of service charges
  5. Minimum wage violations