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Federal Appeals Court Rules Pharmaceutical 'Sales' Reps Entitled to Overtime Pay
Date:7/6/2010

ith discretion because they were "free" to decide the sequence in which to visit doctor's offices, "free" to decide how best to gain access to those offices, "free" to decide how to allocate their Novartis budgets for promotional events, such as dinners, and "free" to determine how to allocate their samples.  The Court determined, however, that because the Reps play no role in: (1) planning Novartis's marketing strategy; (2) formulating the "pre-scripted core messages" they must deliver to physicians; and are required to: (a) visit a given physician a certain number of times per trimester; (b) promote a given drug a certain number of times per semester; and (c) hold a designated number of promotional events ordered by Novartis, the "four freedoms" advanced by Novartis did not show the Reps sufficiently exercised either discretion or independent judgment as required by the administrative exemption.

"By finding that the Novartis Reps are not exempt, and thus are entitled to overtime pay for hours above 40 worked in a week, the Second Circuit vindicated two of the main purposes of overtime laws: to prevent the evil of overwork and to spread work among as many employees as possible," said partner Steven Wittels of SWH.  Wittels also commented that the Second Circuit ruling accords with more than seven decades of case law dictating that exceptions to overtime pay must be narrowly construed.  "This appeal vindicates both the law and justice for Novartis' overworked sales Reps," said Wittels.

Sanford Wittels & Heisler is a law firm with offices in Washington, D.C., New York, and San Francisco that specializes in employment discrimination, wage and hour, consumer and complex corporate class action litigation and has represented th
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SOURCE Sanford Wittels & Heisler, LLP
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