Some employers attempt to get around the requirements of the FLSA by misclassifying their employees. Others, such as Pharmaceutical sales representatives, are often denied overtime compensation, based primarily on the argument that the employees are exempt pursuant to the outside sales exemption of the FLSA. However the cornerstone of the outside sales exemption is that the employee must have a primary duty of making sales. Promoting a product that eventually might be sold by another person does not constitute “making sales” within the meaning of the exemption. Pharmaceutical sales reps meet with physicians to promote certain products but the physicians do not actually purchase any products from these individuals. The administrative exemption is also unavailable to exempt pharmaceutical sales reps from FLSA coverage. This has allowed employers of pharmaceutical sales representatives to not properly pay their reps for the hours worked. Larry Golston (Larry.Golston@BeasleyAllen.com), is currently working on a class action against various pharmaceutical companies on behalf of their sales representatives involving this type claim. He and Lance Gould (Lance.Gould@beasleyallen.com) are the primary lawyers working on FLSA litigation for the Section.
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