A seemingly divided Supreme Court on Monday weighed a potentially costly challenge to the pharmaceutical industry’s practice of not paying overtime to its sales representatives.
The justices questioned whether the federal law governing overtime pay should apply to the roughly 90,000 people who try to persuade doctors to prescribe certain drugs to their patients.
Many sales jobs are exempt from overtime pay under the Fair Labor Standards Act. But unlike typical salespeople who often work on commission, pharmaceutical sales representatives cannot seal a deal with doctors. Federal law, in fact, forbids any binding agreement by a doctor to prescribe a specific drug.
Two salesmen who once worked for drug maker GlaxoSmithKline filed a class-action lawsuit claiming that they were not paid for the 10 to 20 hours they worked each week on average outside the normal business day. Their jobs required them to meet with doctors in their offices, but also to attend conventions, dinners, even golf outings.
Justice Ruth Bader Ginsburg was among several justices who wondered about limits on overtime opportunities if the court were to rule for the sales reps. A court filing by the industry said drug companies could be on the hook for billions of dollars in past overtime.
“If you’re right, would the time on the golf course get time and a half?” Ginsburg asked the salesmen’s lawyer, Thomas Goldstein.
The questions at Monday’s argument suggested the court could divide in unusual ways, not along ideological lines.
In an exchange with Paul Clement, representing GlaxoSmithKline, Chief Justice John Roberts indicated he was skeptical of the company’s argument.
Clement said the salesmen “were hired for a sales job. They were given sales training. They attend sales conferences. They are assigned to sales territory, and they are evaluated and compensated as sales people.”
At this point, Roberts jumped in. “And they don’t do sales,” he said. “Your long list sort of stopped one step short. They don’t make sales.”
Fellow conservative Antonin Scalia, however, left little doubt where he stands, saying the people who filed the lawsuit “look like salesmen to me.”
Scalia said the sales reps are a key link in the chain that ends with people picking up prescriptions at pharmacies. “You can only get a prescription from a doctor. Obviously, the number of prescriptions, drugs sold depends upon the number of prescriptions given by doctors,” he said.
The Obama administration is backing the sales reps, arguing that what they do can’t be considered sales.
Liberal Justice Elena Kagan said the administration’s argument “seems a little bit blind to the way this industry really works.”
But later in the hourlong session, Kagan suggested the pharmaceutical industry should be grateful that the Labor Department has not previously sought to compel drug makers to pay overtime.
“You’ve been given a gift for all these years, is one way of looking at it,” she told Clement.
A decision is expected by late June.
The case is Christopher v. SmithKline Beecham Corp., 11-204.
Also On Black America Web:
This Week’s Celebrity Instagrams (11/26-12/2)
30 photos Launch gallery
1. Little Legend and Puddy 😍😍😍😍
1 of 30
2. "You on point Phife?" "all the time,Tip". 💥 #bannedfromnormal
2 of 30
3. Vegan! The Impossible burger at Crossroads
3 of 30
4. Lawrence #BeforeandAfterEpisodes 1-4: 184lbs 13% body fatEpisode 8: 196lbs 8% body fat S/O @coachdaveboxing with the works outs and @kildareriordan with the nutrition
4 of 30
5. Jus haaaanngin out
5 of 30
6. Meanwhile back at home in Atlanta GA someone mad they not on the 🛳. 😳
6 of 30
7. No limits... Photo cred: Chris Bridges @ludacris
7 of 30
8. new new
8 of 30
9. Apparently my 260lbs is too much for the actual vines in the Hawaiian jungles to hold me without breaking and me falling hundreds of feet. So for safety purposes, I'm forced to swing thru #Jumanjj on wires strong enough to hold 12 adult buffaloes and 1 adult Rock. #OnSet #Jumanji #IronicallyIEatBuffaloDailyForLunch #MoreManThanNatureKnowsWhatToDoWith
9 of 30
10. hey ma! 🎎#wcw 💙
10 of 30
11. Surprise visit to our factories!!! #GoodAmerican #USA
11 of 30
12 of 30
13. Peachy Keen 🔥✨⚡️
13 of 30
14. If this don't look thankful I don't know what does. Happy Thanksgiving to you and yours. #UltraBlessed #24kMagic #SweetPotatoFly
14 of 30
15. Late nights @nbcmarlon with the writers... we in here!!!
15 of 30
16. There goes my baaaaaaaaabbbbyyyyy #QueenKingMagic!!! We're up to something! Ira BIG!!! Stay out our buisness -
16 of 30
17. You want to win every game you play but when you come home to these faces... who cares. #ILoveYouGirls best part of my day, everyday!
17 of 30
18. Steady,steady..... full size jenga.. "I got this one "???? Or do I ?
18 of 30
19. Cornrows kind of day 😉@dontaysavoy2 you convinced me and I love. ❤️️
19 of 30
20. #BrotherlyLove #tbt
20 of 30
21 of 30
22. #basel #TeamLOVE @kingcombs
22 of 30
23. Just introduced a special screening of @directher 's groundbreaking (must see) documentary @13thfilm with my brother @themichaelealy | @unitedblackout #blackoutblackfriday
23 of 30
24. Me & Vanessa Williams giving #DuckLips #Pose on the set of #DaytimeDivas @vh1 - Coming Soon to a tv near you. Lol. - My make up done by @makeupsurgeon
24 of 30
25. This picture just makes me wanna praise the Lord, you hear me!!!!!! Yes Lord brotha #TEDDYCAMPBELL What a #man !!! You are everything right on this picture husband ......... #gorgeous #stylish #classy #strong #masculine #king #sexy #debonair #gentlemenstyle And that #bible in your hand just seals the deal for me (probably cause i know that, that is what helped you become just as amazing as you look😘). While my heart and mind experiences the goodness of God at #church on Sundays, my eyes experiences the goodness of Teddy😍. Amen somebody🙌🏽. "Bless the Lord oh my soul and all that is within me bless his holy name" #myman #myhusband #goodman #blackman #dapperman #godlyman #goodfather #mybestfriend
25 of 30
26. Yesterday was my mama's 53rd birthday!!!!! Got to celebrate with her all day. If this is what I have to look forward to I can't wait. Looking like a soft bucket a cocoa butter. Yaaaaaaaaaas! 😍😍😍 love you mommy!
26 of 30
27. "Shout out to @PureAtlanta for getting the family right"....I'm loving this jogger. 😍😍
27 of 30
28. This pic warms my heart ❤️ #myLogiebeans and aunt aunt umba @itowandabraxton 😘
28 of 30
29. You will always be my baby😜. #HappyBirthdayReginae #mybaby18
29 of 30
30. GC "Gods Child" Red on Red SweatSuit available now at www.MonicaApparel.com ... Take Your Crown wherever you go!! I'm pictured in a Medium... Go to the site now for other options ... cc: @trukernell
30 of 30