Drug reps' overtime case goes to high court

The long-running legal battle of many of the nation's 90,000 pharmaceutical sales representatives to be granted overtime wages has reached the U.S. Supreme Court, which on Monday agreed to hear arguments in a class-action lawsuit against drugmaker GlaxoSmithKline.

Two Glaxo employees, Michael Shane Christopher and Frank Buchanan, say they are entitled to overtime because they are not technically salesmen—a position upheld by the Labor Department in a related by separate lawsuit last year.

Christopher and Buchanan travel to physicians’ offices to try to drum up interest for new drugs. However, in their petition to the Supreme Court (PDF), the men say they are not salesmen because legal restrictions prevent them from taking actual sales orders and ethical rules prohibit them from even securing commitments to buy drugs.

If true, that legal reasoning would label pharmaceutical sales representatives as promoters of drugs and not sales staff, which means they would not be exempt from the requirements to be paid overtime under the Fair Labor Standards Act.

The Labor Department has supported Christopher and Buchanan’s reading of the law in two appeals court cases in the past two years.

In a 2009 case before the 2nd Circuit Court of Appeals in New York, federal judges sided with the Labor Department in Novartis Wage and Hour Litigation.

However, the case accepted by the Supreme Court on Monday was an appeal from the 9th Circuit Court of Appeals in Pasadena, Calif., which earlier this year disregarded the Labor Department’s interpretation of its regulations and ruled in favor of GlaxoSmithKline.

The 9th Circuit judges ruled that pharmaceuticals sales staff do make sales in the classical sense of the word, even if “the structure and realities of the heavily regulated pharmaceutical industry” can cloud legal judgments on the issue.

The Supreme Court case, 11-204, is captioned Christopher v. SmithKline Beecham. The U.S. Chamber of Commerce and the Pharmaceutical Research and Manufacturers of America have filed amicus briefs supporting GlaxoSmithKline’s side of the case.