By Khristine Scholtz
The U.S. Labor Department, continuing its push for a narrow definition of outside salesmen, argued in a friend of the court brief that the outside-sales exemption is limited to employees who make their own sales.
At issue is whether pharmaceutical sales representatives must be paid for working overtime hours, or are exempt under the Fair Labor Standards Act. Appeals courts are split and the U.S. Supreme Court is slated to hear arguments in Christopher v. SmithKline Beecham Corporation on April 16.
The court will be considering the Ninth Circuit’s 2011 holding that drug reps, who are not licensed to actually sell pharmaceuticals, are selling their product in the only way they can and thus are covered under the FLSA’s white collar exemption.
Earlier, the Second Circuit had sided with employees and the Labor Department, concluding that because drug reps don’t sell anything — they simply promote a product — they qualify for overtime.
DOL maintains that its application of the overtime exemption to pharmaceutical reps is consistent with controlling regulations and its own earlier holdings and thus “is entitled to controlling weight.”