California Labor Law and the "Science of Overtime"

Posted on August 17, 2010 by Walter Haines, Esq.

California labor law and California overtime issues are shaking up the world of science. Many employees that one may think are relatively high level in terms of job title and income, and not entitled to overtime pay, actually are entitled to overtime pay. If you are a research scientist, research associate, research technician, laboratory technician, quality technician, laboratory analyst, or quality analyst you may indeed be entitled to overtime pay. Even more importantly, the burden of keeping time records lies on the employer. Therefore, in the event these employees are misclassified and determined to be non-exempt and entitled to overtime pay, if the employer failed to keep time records, the courts will rely on the reasonable testimony of the employee as to the hours worked.

It has been the long standing policy of many of the largest pharmaceutical companies and science and research companies to simply classify many of these job titles as “exempt” and not entitled to California overtime pay. In many instances, nothing could be further from the truth. The majority of these jobs require little independent judgment and discretion or meet the other strict criteria of exemptions from California overtime.

If an employee in any of these jobs titles, has been deprived of California overtime pay, under the law, such employees may be able to go back up to 4 years and collect their rightful overtime, interest and possibly some penalties under certain circumstances. Moreover, in California when bringing an overtime claim, there is a “one way” attorney fees clause whereby if the employee prevails they are entitled to recover their attorney fees. The opposite is not true for the employer. Their legal fees in defending a legitimate overtime claim are not recoverable.

Companies in the industries that may employ these types of employees discussed in this article are:
Abbott Laboratories (ABT) Biogen Idec Inc (BIB) Exelixis, Inc. (EXEL)  Pfizer, Inc. (PFE) 
ACADIA Pharmaceuticals Inc. (ACAD) BioMedica  Genentech Prometheus Laboratories 
Accumetrics Biosite Diagnostics  Gen-Probe Incorporated (GPRO)  Salk Institute 
ADVENTRX Pharmaceuticals, Inc. (ANX) Boston Scientific Corporation (BSX)  Genomatica  The Scripps Research Institute 
Agilent Technologies, Inc. (A) BrainCells  Genzyme Corporation (GENZ)  Senomyx, Inc. (SNMX) 
Alliance Pharmaceutical Corp. (ALLP) Burnham Institute  Gmbh Sequel Pharmaceuticals 
Allylix Cadence Pharmaceuticals, Inc. (CADX)  Halozyme Therapeutics, Inc. (HALO)  Sequenom, Inc. (SQNM)
Ambit Biosciences Calmune HUYA Bioscience International  Siemens AG (SI) 
Amgen Inc (AMGN), Carolus Therapeutics  Ichor Medical Systems  SRI/Surgical Express, Inc. (STRC)
Amira Pharmaceuticals Cato Research  Inovio Biomedical  Strategic Enzyme Applications 
Amylin Pharmaceuticals, Inc (AMLN), Celgene Corporation (CELG)  Invitrogen  Tracon Pharmaceuticals 
Anadys Pharmaceuticals, Inc. (ANDS) Ceregene  Ligand Pharmaceuticals Incorporated (LGND)  Tragara Pharmaceuticals 
AnaptysBio Charles River Laboratories International, Inc. (CRL)  MabVax Therapeutics  VentiRx Pharmaceuticals 
Arena Pharmaceuticals, Inc. (ARNA) ChemDiv  McGaw Vertex Pharmaceuticals Incorporated (VRTX) 
Baxter International Inc. (BAX)  Clinimetrics  Mixture Sciences  Vical Incorporated (VICL)
Beckman Coulter, Inc. (BEC)  Conatus Pharmaceuticals  MultiGEN Diagnostics  Zacharon Pharmaceuticals 
Becton Dickinson  Cypress Bioscience, Inc. (CYPB)  Neurocrine Biosciences, Inc. (NBIX)   
BioAtla  Elan  Novartis AG (NVS)   
Biocept  Eli Lilly and Company (LLY) Ocera Therapeutics   

 

At United Employees Law Group, we have handled and are currently handling over 700 individual cases and over 150 class action cases, many against some of the largest corporations in the United States.

It is important to understand that if you believe you have a claim, you need to speak to a California employment attorney immediately as there are statutes that govern the time limit that you have to file your claim(s). Time is of the essence.

To be certain as to whether or not you are entitled to California overtime pay, it is important to talk to a qualified and experienced California labor law attorney.

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Pharmaceutical Reps are Entitled to California Overtime Pay

Posted on July 13, 2010 by Walter Haines, Esq.

On July 6, 2010, the Second U.S. Circuit Court of Appeals held that sales representatives for Novartis Pharmaceuticals Corporation  are entitled to overtime pay under the Fair Labor Standards Act (FLSA).  Many California employees of Novartis claimed that they were wrongfully denied overtime pay between March 23, 2000 and April 7, 2007. The representatives, who worked nine-hour days, made routine calls and visits to physicians inquiring as to whether they would prescribe the company’s products to patients. Under the FLSA, employees must be paid overtime for more than 40 hours worked per week, but there are exemptions for “outside” salespersons  and “administrative” personnel.

The Court ruled that neither exemption applies to pharmaceutical reps because

(1) representatives only promote a product and do not make “sales”
(2) their activities are so tightly controlled by the company that they are not allowed to exercise independent judgment.

According to Secretary of Labor Hilda L. Solis,  an employee who can merely promote a drug and provide samples, has not in fact made a “sale.” Judge Kearse  agreed, stating that an employee who cannot “even obtain from the physician a binding agreement to prescribe it” has not made a sale.  
Novartis contended that its representatives are exempt from overtime under the “administrative” exemption, because they are free to determine when they will visit a particular doctor and how best to earn their support, whether it be dinner, a sporting event, or some other activity. The Court rejected this argument because it failed to establish a freedom of discretion. It particularly noted that Novartis representatives have no control over the company’s marketing strategy. Furthermore, the company determines the physicians to be visited, the drugs to be recommended, and the promotional events to be held. 

The ruling in this case is important because it is the first federal appellate decision addressing the outside sales and administrative exemptions as it applies to the pharmaceutical industry.  
It also underlines the main purpose of California overtime law, which is to evenly divide work among employees. 
If you are a pharmaceutical representative and have questions regarding your entitlement to California overtime pay, take action and call a knowledgeable California labor law attorney.

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