On Wednesday, October 14, 2009, the Secretary of Labor submitted an amicus curiae brief supporting the position of over 2,500 pharmaceutical sales representatives seeking payment for overtime. The brief claims that the U.S. District Court for the Southern District of New York erred when it found that Novartis Pharmaceutical sales representatives are exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”).

At issue is whether the sales representatives were exempt under either the “outside sales” or “administrative” exemptions. While pharmaceutical sales representatives engage in a number of activities similar to an “outside salesman,” no actual sales take place. In fact, such sales are prohibited by federal law. The sales actually take place between the pharmacy and Novartis. According to the Department of Labor, the exemption in the FLSA requires the employee to actually make sales. Since no sales are made, the representatives do not meet the qualifications for the “outside sales” exemption.
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