Kentucky Employment Law Blog

Drug Sales Reps Not Exempt From Overtime, Second Circuit Rules

Sales reps for the phamaceutical giant, Novartis, are not exempt from overtime requirements the Second Circuit ruled recently In re Novartis Wage & Hour Litigation, No 09-0437 (July 6, 2010). The court rejected arguments that the reps were exempt under either the "outside sales" exemption and/or the "administrative" exemption.

The court ruled that the reps were not exempt from overtime under the "outside sales" exemption because they did not actually make any sales, they function as promoters and the "sales" calls typically go as follows:

The meetings are brief -- generally less than five minutes -- and the physicians neither buy pharmaceuticals from the Reps nor commit to buying anything from the Reps or from Novartis.

The reps do not fall under the "administrative" exemption the court ruled because (a) they have no authority to formulate, affect, interpret or implement Novartis's management policies or its operating practices; (b) they are not involved in planning Novartis's long or short term business objectives; (c) they do not carry out major assignments in conducting the operations of Novartis's business; and, (d) they do not have any authority to commit Novartis in matters that have significant financial impact.

Robert L. Abell
www.RobertAbellLaw.com

Supreme Court To Decide Whether Retaliation Ban Applies to Family Members and Others Closely Associated With An Employee that Complains of Discrimination

The United States Supreme Court announced Tuesday, June 29, 2010, that it would review a case, Thompson v. North American Stainless, No. 09-291, to decide whether the anti-retaliation provision in Title VII extends protection to family members and others closely associated with an employee that engages in protecting activity by reporting or opposing discrimination in the workplace. 

The questions framed in the petition for certiorari are as follows:

Section 704(a) of Title VII forbids an employer from retaliating against an employee because he or she engaged in certain protected activity. The questions presented are:

(1) Does section 704(a) forbid an employer from retaliating for such activity by inflicting reprisals on a third party, such as a spouse, family member or fiancé, closely associated with the employee who engaged in such protected activity?

(2) If so, may that prohibition be enforced in a civil action brought by the third party victim?

This case has previously been discussed in earlier postings: "Retaliation Prohibitions Narrowed by Sixth Circuit" and "Employer's Retaliation Against Fiancee of Employee Charging Discrimination Violates Title VII."

SCOTUSBLOG has the petition for certiorari at its site here.

Robert L. Abell
www.RobertAbellLaw.com