Panelists included Susan Webman, Of Counsel with FortneyScott in Washington, DC., John Husband, senior partner with Holland & Hart in the firm’s Denver, Colorado office, Linda Walton, attorney with Perkins Coie LLP in Seattle, and panel moderator Charles Plumb, partner with McAfee & Taft in the firm's Tulsa, Oklahoma office.
The issue in the case was whether the pharmaceutical sales reps (PSRs) could be exempt as outside sales reps because they don’t actually make the sale of the drugs. They get physicians to agree to prescribe the drug, but the actual sale is made at the drug store by the pharmacist.
The Supreme Court found that the PSRs were outside sales reps under the Fair labor Standards Act, and thus not entitled to overtime.
Interestingly, the Court did not give deference to DOL’s interpretation of its regs, which may prove helpful to employers in future cases.
More states are entering Memoranda of Understanding (MOU) with the federal government. This means more agencies are exchanging information, and in turn, that means ramped up enforceability by state agencies, DOL, and IRS. (State taxation agencies and the federal IRS are particularly interested because they can collect more taxes when independent contractors are reclassified as employees.)
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Many employers think it’s OK to have unpaid interns, while in most cases it is not OK, says panelist attorney Susan Webman, Interns may be unpaid only in limited circumstances. The government has a six-point test:
If all of the factors listed above are met, an employment relationship does not exist under the FLSA, and the Act’s minimum wage and overtime provisions do not apply to the intern.
Unpaid interns, independent contractors—just a couple of, what, a dozen wage/hour challenges on your desk?
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