At the heart of the debate is a pretty simple, straightforward question: should these detailers — the people who go into doctors’ offices and try to convince physicians to purchase medications from their drug companies — be considered salespeople… or not?
• If so, then Federal Law can exempt the drug companies from having to pay these people for overtime.
• But if the detailers are not considered “outside salesmen,” then they should be entitled to overtime.
It’s a technical question. But billions of dollars weigh in the balance. If the plaintiffs win, the ruling could rock the pharmaceutical industry, and drug companies will be forced to pay out huge sums in overtime related liabilities.
Many detailers work standard hours (8:30 to 5:00) and also clock in an additional 10 or 20 hours extra every week. The reps also get bonuses based on prescription volumes.
A New York Times article on the debate recently quoted Justices Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer — the Justices tried to parse the arguments while keeping the “bigger picture” in mind. The lower courts have already gone back and forth on the case. Back in July 2010, a Second Circuit Panel of three Judges concluded that the detailers should not be called outside salesmen because they cannot lawfully obtain from physicians a binding commitment to prescribe drugs. Four months later, however, a panel of Judges at the United States Court of Appeals for the Ninth Circuit ruled a different way.
The U.S Labor Department jumped in on the action and gave support to the plaintiffs in both cases. In weighing the situation, Justice Breyer chastised the Labor Department a little bit for acting “rashly” in support of the plaintiffs but did agree that the case is a “close call.”
Joseph & Kirschenbaum is part of the legal team representing the plaintiffs in this case and several others in New York and across the United States. If you’re part of the pharmaceutical industry and feel you’re due overtime pay, or if you’re in any other industry and had a wage and hour issue or a problem with sexual harassment, racial discrimination or retaliation, connect with the JHLLP team today by calling us for a confidential consultation at (212) 688-5640, or explore more about our team on the web at www.jhllp.com.