DOL Weighs in on Ninth Circuit Pharmaceutical Rep Overtime Case

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On August 11, 2010, the Obama Administration weighed in on the pharmaceutical representative overtime debate. The Federal Department of Labor filed an amicus brief in the Ninth Circuit case of Buchanan v. SmithKline Beecham Corp., 10-1525, declaring that in their analysis of the legal issues, pharmaceutical representatives are not exempt under the outside sales exemption or the administrative exemption of the FLSA.

"We expect the Ninth Circuit to give significant deference to the DOL."

On August 11, 2010, the Obama Administration weighed in on the pharmaceutical representative overtime debate.

The Federal Department of Labor filed an amicus brief in the Ninth Circuit case of Buchanan v. SmithKline Beecham Corp., 10-1525, declaring that in their analysis of the legal issues, pharmaceutical representatives are not exempt under the outside sales exemption or the administrative exemption of the FLSA.

In addition to Buchanan v. SmithKline Beecham Corp., No. 10-1525, three other cases dealing with overtime pay for pharmaceutical representatives under California law are fully briefed and pending before the Ninth Circuit, D'Este v. Bayer, 07-56577, Barnick v. Wyeth, 07-56684, Menes v. Roche, 08-55286.

Charles Joseph of Joseph, Herzfeld, Hester & Kirschenbaum, one of the firms bringing class claims on behalf of the reps in California and elsewhere, commented that the new brief from the Department of Labor makes it even more likely that the Ninth Circuit will find in favor of the reps in both sets of appeals pending there under California state law and federal law. “We expect the Ninth Circuit to give significant deference to the DOL as did the Second Circuit in the Novartis and Schering Plough cases and as did the Federal Court in Chicago in the Abbott case.”

Eric Kingsley of Kingsley & Kingsley, another firm handling pharmaceutical rep overtime cases across the country, commented on the likelihood that the U.S. Supreme Court will weigh in on this issue. “We believe it is unlikely that the U.S. Supreme Court will take the matter for review, and that if they did, given Justice Scalia’s views on agency deference, it is highly likely that the Court would adhere to the DOL’s position, which is well on its way to being the law of the land.”

For further information go to http://www.pharmarepovertime.com or call Joseph, Herzfeld, Hester & Kirshenbaum at 866-348-7394 or Kingsley & Kingsley at 866-348-7394.

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Eric Kingsley

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