Drug Companies Stymied on Overtime-Pay Cases .

Quote






Supreme Court Won’t Review Sales Rep Overtime
3 Comments
By Ed Silverman // February 28th, 2011 // 12:17 pm

In what is being hailed as a victory for sales reps, the US Supreme Court has decided not to review lawsuits in which a lower court decided that Novartis and Schering-Plough should have paid overtime to its sales teams. The move means that still other lawsuits filed against several other drugmakers are likely to yield the same outcome, possibly prompting changes in the way sales reps are compensated (see the court denials here and here).

Here’s the background: a federal appeals court last July ruled Novartis reps are not exempt from overtime provisions of the Fair Labor Standards Act and, therefore, should be paid overtime. The same court also upheld a similar decision reached two years ago against Schering-Plough by a federal court, which denied a motion to dismiss a case brought against the drugmaker by some of its sales reps (see the rulings here and here).

The decision against Novartis and Schering-Plough was made by the Second Circuit, which presides over territory where other lawsuits have been filed against Pfizer, GlaxoSmithKline, Abbott Laboratories and Bristol-Myers Squibb. As a result, the Supreme Court decision suggests that sales reps are likely to win their cases in these jurisdictions. However, this will not effect, for now, a recent ruling by the Ninth Circuit, which ruled in favor of Glaxo that sales reps do not qualify for overtime pay.

“The specter of a Supreme Court review is greatly diminished, although not eliminated, because the court could take it up with some other case in the future,” says Charles Joseph, who represents sales reps in many of the lawsuits against drugmakers. “For now, the Second Circuit decision remains the law of the land in the Second Circuit. “I do not understand how these drugmakers will not have to immediately start to change their practices.”

The Second Circuit found that sales reps are not exempt from overtime provisions of the Fair Labor Standards Act. The FLSA’s overtime compensation requirement doesn’t apply to employees who work as outside salespeople, but the law does require employers to pay overtime for hours worked beyond 40 hours a week, unless a FLSA exemption applies. What are those exemptions? If an employee’s primary duty is to obtain orders or contracts (as defined by the statute) and regularly does so away from the employer’s place of business.

Drugmakers argue their sales reps are, indeed, outside salespeople who close sales because the primary customer is the physician. But in 2009, the US Department of Labor added an unexpected twist to the debate by filing an amicus brief with a federal appeals court contending that a lower court was wrong to toss their lawsuit (see here).
 






This is probably the most powerful driving force behind CSO. Not the total compensation as much as the hourly versus annual compensation model. Pharmas need some level of professional technical expertise in sales and have here-to-fore managed to keep it within the general "professional employee". Now that it will be pay for time served, they want the CSO organization to manage that contractually. There will be very limited career opportunities with pharmas starting from sales entry-level positions. Just as there are limited career opportunities for laboratory technicians that perform work for pharmas through contract testing organizations. At some point (here already?) where the compensation and potential career earnings for technical professionals will not repay the investment in their education, no matter how diligently they perform.
 
























Anonymous said:
Let's get this class action thing going so I can get paid!!!!!!!!
Click to expand...

Hell yeah! Screw this company! Merck execs have no problem terrorizing the salesforce with their pyscological torture tactics to get rid of some of us or to demoralize us into submission. Meanwhile top execs continues get tons of options for nothing but failure after failure. A Merck class action lawsuit would make all of the saleforce be well!
 






Whether you go the class action route or the labor department approved company-offered settlement route, you will not get very rich, very fast. Expect this to take 2-3 years for any cash to come your way and class-action will skim about 50%+ from any reward. Companies will already be structuring new compensation schemes and they will need to work with state labor departments to structure settlements for past o/t. By the way, those state labor departments are probably getting targeted today for reductions themselves and the process will get slower. See how that Tea Party anger puts money in the pockets of big business? Keep detailed records of your work hours and make sure that you have the evidence to prove them.
 






I dont' think this is such great news. We now will be expected to account for all of our hours every single day. We will not be approved for overtime. Think about it. Is that good?
 






Will this mean we now will work from 9 to 5? Including all studying, testing, reports, sample shipments, meetings, expense reports, emails, voice mail, meeting travel time, limited computer work time in the evening ect?

What does this mean?
 






It means "be careful what you wish for"! This isn't going to make any of our jobs any safer!! This is just stupidity. What in the hell are you doing on the weekends anyway??? It's not like you are working 8 hours over the entire weekend. Most people in the "corporate world" bring work home! Quit being greedy!
 






Anonymous said:
It means "be careful what you wish for"! This isn't going to make any of our jobs any safer!! This is just stupidity. What in the hell are you doing on the weekends anyway??? It's not like you are working 8 hours over the entire weekend. Most people in the "corporate world" bring work home! Quit being greedy!
Click to expand...

Well those jobs could hardly be less safe anyway.

Most people in the American corporate world think that more hours means more productivity. This myth creates a mystifying behavior of wasting time from 9-5 resulting in employees pissing away their own personal time after work. The craziest thing is that the most inefficient people can end up feeling really good about themselves. Merck is famous for implicitly creating this macho give-me-every-hour-of-your-life culture. I can't tell you the number of banal e-mails I have seen from ambitious managers that seem to get "time-stamped" as late in the evening as possible followed up by banal e-mails "time-stamped" as early as possible the next day. Time stamping on Sundays and public holidays seems to count double for brown-nosing. I, for one, would like to compensated at time and a half for the absurd training crap and teleconferences. The O/T bill just bring attention to how little the company cares about wasting people's time when it's someone else's time. If I work a solid 40-45 hours each week and don't screw around during normal hours, the company will do just fine. I wouldn't want to babysit my boss's kids on my own time nor do I want to babysit my boss's problems then either.

This will mean time sheets for most people. Another rationale for the entire field sales work to get outsourced.
 






Anonymous said:
It means "be careful what you wish for"! This isn't going to make any of our jobs any safer!! This is just stupidity. What in the hell are you doing on the weekends anyway??? It's not like you are working 8 hours over the entire weekend. Most people in the "corporate world" bring work home! Quit being greedy!
Click to expand...

Douche!
 












Anonymous said:
A bunch of Merck reps in California filed a lawsuit recently. Check out the link below.


http://www.lawyersandsettlements.com/case/merck-sales-rep-california-overtime.html
Click to expand...

Wrong Federal Circuit to file in since the Second Circuit (NJ) has already made a decision beneficial to reps whereas the West Coast decided against O/T. S-P has lost the case in NJ and probably the ruling will apply to all of the US for Merck. I wouldn't waste my time filing in CA. Go see recent article on Pharmalot
 






Anonymous said:
Will this mean we now will work from 9 to 5? Including all studying, testing, reports, sample shipments, meetings, expense reports, emails, voice mail, meeting travel time, limited computer work time in the evening ect?

What does this mean?
Click to expand...

I could go for turn on computer at 9 and off at 5, would finally have a life. Mother would then see all that we really do and all for "free."
 






If Merck inherited the lawsuit then would ALL Merck employees be eligible for the lawsuit during the specified time? So what would that mean? I don't know about ya'll but I'll take whatever I can get from this dying joke of a company. Serves the industry right for giving the absurd salaries to the upper echelons. How many jobs would have been saved if the millions given to Dickie-poo (who imo was the catalyst for the inverted viagra chart of employee satisfaction with the co.) would have been used to keep the jobs they cut?
 






It IS be careful what you wish for. Since the lawsuit was upheld based on the fact that the rep has "no discretion in decision making" in their job (delivers a scripted message, calls on only selected targets, etc.), any company would re-evaluate the job function to that end and grade it for compensation purposes at a lower level. This is not about any company trying to screw people. Truly, if there is no discretion in the job, why do you need an education or experience? Your job description is evaluated in part on your level of discretion in decision making, education and experience requirements. You will get hourly pay but it won't be the same amount you are currently getting in salary. These reps really stuck their foot in it and they have thrown everyone else into it too. If you want to have a professional position, you need to deal with the ups and downs of a salary job. If you want a "service" position and hourly rate including overtime, then you will be dealing with taking time off without pay for dentist appointments or school conferences and a hourly rate that reflects a service level type of position.
 






Anonymous said:
It IS be careful what you wish for. Since the lawsuit was upheld based on the fact that the rep has "no discretion in decision making" in their job (delivers a scripted message, calls on only selected targets, etc.), any company would re-evaluate the job function to that end and grade it for compensation purposes at a lower level. This is not about any company trying to screw people. Truly, if there is no discretion in the job, why do you need an education or experience? Your job description is evaluated in part on your level of discretion in decision making, education and experience requirements. You will get hourly pay but it won't be the same amount you are currently getting in salary. These reps really stuck their foot in it and they have thrown everyone else into it too. If you want to have a professional position, you need to deal with the ups and downs of a salary job. If you want a "service" position and hourly rate including overtime, then you will be dealing with taking time off without pay for dentist appointments or school conferences and a hourly rate that reflects a service level type of position.
Click to expand...

Are you really this stupid? If Merck wanted to pay you less then they would pay you less. Has nothing to do with a court ruling Moron. And btw, this has nothing to do with any of us accepting the ups and downs of a salary job, it has to do with the law. No company can treat you one way because they want to or you will accept ups and downs. It has to do with a company not forcing you to deal with the ups and downs. It's something bigger. It has to do with your rights as a US citizen.
 






Top Bottom
Back
Quote