One question before the United States Supreme Court is whether the Fair Labor Standards Act "outside salesman" exemption applies to pharmaceutical sales representatives who promote but do not sell their company's drugs to physicians.
Naples, FL (PRWEB) February 09, 2012
Workers in a number of fields have been able to win back wages and other damages by filing independent contractor misclassification complaints against their employer. The United States Supreme Court is currently reviewing one such misclassification case which could affirmatively open the doors to pharmaceutical sales representatives denied overtime wages due to being misclassified as “outdoor salesmen” rather than employees entitled to overtime pay (Docket No. 11-204 in the U.S. Supreme Court).
One question before the United States Supreme Court is whether the Fair Labor Standards Act “outside salesman” exemption applies to pharmaceutical sales representatives who promote but do not sell their company’s drugs to physicians. In an amicus brief filed Monday, the U.S. Department of Labor (DOL) urged the Supreme Court to find that pharmaceutical sales representatives are not salesmen.
“The potential amount of retrospective liability from these cases is staggering; plaintiffs’ counsel in one suit involving just 2,500 PSRs estimated that damages from that suit alone could reach $100 million,” said the industry trade association, Pharmaceutical Research and Manufacturers of America, in an October brief. “If so, the industry as a whole faces potential liability in the billions of dollars.”
Gilman Law LLP is offering free complaint consultations to any pharmaceutical sales representative who may have been misclassified as an independent contractor and denied overtime wages.
Gilman Law is also offering free overtime complaint consultations for other employees working as construction workers, delivery/couriers, stocking vendors, maintenance workers, food processing plant workers, dental assistants, waitresses, nail salon techs, nurses, secretaries, landscapers, and many other persons who were not classified as employees.
If you or someone you know is being wrongly classified as an independent contractor, it is important that you contact Gilman Law today to discuss your misclassification complaint with one of our experienced employment lawyers.
Independent Contractor Misclassification
Independent contractors generally include self-employed workers who are not covered by the tax and wage laws that apply to employees. When a worker is deemed an independent contractor, employers are not required to pay Social Security, Medicare or federal unemployment insurance taxes. State and federal FLSA’s minimum wage and overtime requirements don’t apply to independent contractors, and they are denied benefits under the Family Medical Leave Act and many other protections. In a tough economy, it is easy to see why some companies might be tempted to “misinterpret” or ignore the federal and state laws that cover the classification of employees as independent contractors.
How do courts determine an independent contractor misclassification complaint
To determine whether an individual is an “employee” under state law or the FLSA, courts look to the economic reality of the parties’ business relationship as a whole. A worker’s status is determined by whether the individual is economically dependent on the business he or she is working for, or, as a matter of economic reality, is actually in the business for themselves. For tax purposes, the Internal Revenue Service (IRS) looks at three main factors to determine if a worker is an independent contractor or employee. These factors include:
Behavioral: Does the company control what a worker does or how the worker performs those duties?
Financial: Are the business aspects of the work (method of payment, reimbursement of expenses, etc.) controlled by the worker or the company?
Relationship: Is there a written contract? Does the worker receive employee-type benefits, such as a pension plan, insurance, or vacation pay, for example? Will the relationship between the worker and the company continue for an unlimited time?
Legal Help for Victims of Independent Contractor Misclassification
Workers illegally classified as independent contractors may be entitled to thousands of dollars in back wages and benefits. If you think your employer wrongly misclassified you as an independent contractor, Gilman Law can help. For a free evaluation of your case, please fill out the online form at http://www.gilmanlawllp.com or call Toll Free at 1-888-252-0048.
About Gilman Law LLP
For over 30 years, the lawyers at Gilman Law LLP have extensive experience representing employment claims including violations of various state laws including in the Commonwealth of Massachusetts and the federal Fair Labor Standards Act (FLSA) and violations of other state labor laws. For more information, please visit http://www.gilmanlawllp.com. Free case evaluations are also available by calling Gilman Law TOLL FREE at (888) 252-0048.
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