A New York federal judge on Thursday gave initial certification of a collective action alleging the U.S. affiliate of Japan-based Astellas Pharma Inc. misclassified current and former pharmaceutical representatives as exempt from overtime pay. The Judge granted conditional certification of the Fair Labor Standards Act action against Astellas Pharma US Inc., finding that the named plaintiff was able to show that he and other sales representatives nationwide held the same general job description and had been exempted from overtime. Therefore, Plaintiffs’ lawyers will be sending a consent to join form to all sales representatives who worked for the Company for the past three years.
The issue of overtime pay for pharmaceutical representatives is hotly contested, as some Courts have decided that these employees are entitled to overtime, while other Courts have decided they are not. Fortunately, the Second Circuit Court of Appeals, which covers New York, Connecticut and Vermont, has previously ruled that pharmaceutical salespeople are entitled to overtime, since they in-fact do not sell anything. On the contrary, these salespeople merely advise doctors to use the company’s products, with no sales actually being made. This is an issue that the Supreme Court may ultimately want to hear.