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Merck Sales Rep California Overtime
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A lawsuit has been filed on behalf of California Merck sales representatives alleging they were misclassified as exempt from California overtime and should have been paid overtime for their work as Merck pharmaceutical sales representatives. The California overtime lawsuit was filed in the southern district of California by Jason Frudakis and seeks to represent other Merck sales reps.
Under California overtime laws, employees are entitled to one-and-one-half times the regular rate of pay for all hours worked that are in excess of eight hours in a workday. Furthermore, under both California overtime laws and the Fair Labor Standards Act (FLSA), employees are entitled to overtime pay for working more than 40 hours in a workweek.
California Overtime and Merck Sales Representatives
Under the Fair Labor Standards Act (FLSA), people who are involved in outside sales are typically considered exempt from overtime pay. That is because people involved in outside sales have unlimited earning potential due to their commissions—the more they sell, the more they can make.
Merck Pharmaceutical Sales and the Fair Labor Standards Act
For a long time, pharmaceutical sales representatives were considered exempt from overtime pay. They could be considered exempt on one of two counts: either as outside sales people or under the administrative exemption, if they have discretion and authority in their job.
Merck Sales Overtime Pay
Some recent lawsuits, however, have resulted in the courts determining that some pharmaceutical sales reps are not exempt from overtime pay—that is, they should be paid overtime for their hours worked—because they do not fall under either the outside sales exemption or the administrative exemption.
A lawsuit filed against Merck alleges that Merck sales representatives should be paid overtime because they do not meet the requirements for overtime exemption. According to the complaint, the primary duties of Merck representatives are to, "promote defendant's pharmaceutical healthcare products in accordance with defendant's established specific procedures and protocols which govern and control every aspect of the work performed by the Sales Representatives."
Merck Sales Representative Overtime Lawsuit
In other words, Merck sales representatives do not sell or obtain orders or contracts for products. They simply promote Merck products. Because the Merck representatives must follow Merck's procedures, they do not exercise judgment or discretion in their job. Furthermore, the defendant, Merck, sets the work schedule for the sales representatives, which can, according to the lawsuit, involve 10 to 12 hour workdays and 50 to 60 hour workweeks, with no overtime pay.
The lawsuit alleges Merck is in violation the California Labor Code. "As a matter of company policy, practice, and procedure, defendant has unlawfully, unfairly and/or deceptively classified every Sales Representative as exempt based on job title alone, failed to pay the required overtime compensation, and otherwise failed to comply with all applicable labor laws with respect to these Sales Representatives," the lawsuit claims. Plaintiffs also allege they were not provided with proper meal and rest breaks.
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