NELA and the National Employment Law Project joined together as amicus curiae to urge the U.S. Supreme Court in Christopher v. SmithKline Beecham (Case No. 11-204) to endorse the right of pharmaceutical sales representatives (PSRs) to be classified as non-exempt employees. The petitioner-plaintiffs are two among approximately 90,000 PSRs employed within the American pharmaceutical industry who visit physicians’ offices and encourage physicians to prescribe their employer’s products to their patients. Plaintiffs filed suit under the Fair Labor Standards Act (FLSA) seeking overtime pay on behalf of a nationwide class of PSRs employed by respondent-defendant SmithKline Beecham, Corp., d/b/a GlaxoSmithKline. Numerous similar suits have been filed throughout the country by PSRs performing identical business functions for various pharmaceutical companies. Defendant’s motion for summary judgment was granted on the basis that PSRs are outside salespersons who are exempt under the FLSA.
In line with our successful brief in In re Novartis Pharmaceutical Litigation, where the Second Circuit reached the contrary conclusion to the Ninth Circuit in Christopher, NELA’s brief argues that requiring outside sales people to make actual sales is central to the purpose of the exemption; that to ignore the actual sales requirement would draw the courts in an unwarranted policy-making role; and in the absence of congressional or regulatory action, the court should not dilute or refashion the FLSA’s explicit requirements for one industry.
Authors: Charles G. Frohman (MN), Mariko Hirose (NY), Paul W. Mollica (Il), Rachhana T. Srey (NY), Justin M. Swartz (NY)