Employment Archive

Are Outside Sales Reps Exempt from Overtime Pay?

October 5th, 2010. By Kristine B

It’s one of the great conundrums facing employees today: determining whether or not they are exempt from overtime pay. For some, the answer is simple but for others, the answer is much more difficult. Many companies try to classify employees as exempt from overtime pay for obvious reasons—it saves them money. But that doesn’t make it right. This week, Pleading Ignorance looks at outside sales representatives and explains why (or why not) they should be paid overtime. 

Outside sales representatives spend a lot of their time talking with clients and potential clients. They explain the company’s products, prices and the benefits their products have over a competing product. They may or may not leave free samples with the client (or potential client) and may follow up later to encourage the potential client to purchase the product. 

Outside sales representatives are considered exempt from overtime pay, but there is a catch to this. Some sales reps may be misclassified as exempt from overtime pay when, in fact, they are not. 

To be exempt from overtime pay as an outside sales person, the person has to directly affect the sale transaction. 

Here’s an example: I market pens to you (let’s say you’re a doctor who needs pens). Because of my marketing of the pens, you decide to buy them. I have directly affected the sale of the pens and am, therefore, considered an outside sales person. 

Now, consider pharmaceutical sales reps: They go to a doctor’s office and market a drug, drug X. But, the doctor doesn’t actually purchase drug X. All the doctor does is prescribe Read the rest of this entry »

Tags: Exempt, Outside Sales, Overtime Pay
Posted in Employment | 2 Comments »

Employers vs Sick Employees: Whose Side Are You On?

September 14th, 2010. By Hunter West

The recent spate of incidents where employees have been unjustly fired for health issues through no control of their own leaves an unsavory aftertaste, and paints employers guilty of such conduct as mean-spirited. A case in point is the former employee of a Michael’s store who felt pressured to return to work early after a double mastectomy, only to be fired soon after while continuing to undergo chemotherapy. 

As inconvenient as it might be to have a vital employee sidelined for health issues, basic human rights suggest that the employer has a moral obligation to stand behind an employee who is suffering. There are also legal requirements to that end. 

Nor should an employee who has health issues through no fault of his own—but still capable of working—find himself shut out by an employer, and from a job he needs and is quite capable of doing, just because he is not the pristine specimen that may fit the company profile. 

Employees who suffer health discrimination in the workplace can, and do fight back. Recently a breast cancer patient sued her former employer for what she claimed to be an unjust firing and was awarded millions in compensation. 

But there are two sides to every issue—and it can go both ways. 

To wit, employees have to take some responsibility for their own health. When they fail to do so, who can blame an employer for feeling angry and betrayed? 

How long have we known that smoking kills? And yet there are those who smoke like a Read the rest of this entry »

Tags: Employment, Job Discrimination, Sick Workers, Wellness, Workplace Discrimination
Posted in Employment | No Comments »

Riddle: How Many Make a Class for a Wal-Mart Class Action?

September 1st, 2010. By LucyC

Question: How many people does it take to make a class in a class action lawsuit?

Answer: That depends on how much money you have to spend.

Faced with a potential class action lawsuit over allegations that the world’s largest private employer discriminated (discriminates?) against its female employees, Wal-Mart has so far managed to avoid a trial by insisting that the roughly 1 million women who worked for them since 2001 don’t constitute a class. That’s nine years of legal wrangling and it ain’t over yet.

Just as a quick reference, according to one legal dictionary I checked the definition of a class is: “a lawsuit that allows a large number of people with a common interest in a matter to sue or be sued as a group.” That seems fairly straight forward to me. As indeed it did to a federal court judge in 2004, who ruled that the women do constitute a class. Wal-Mart, apparently having the funds available to drag this out—appealed the decision, but in April, the Ninth Circuit Court of Appeals also ruled that the 1 million women constitutes a class, and that the case could proceed.

But no. Not yet. Wal-Mart—the harbingers of “Save Money. Live Better.”—seem to be following their own advice to the letter, figuring it’s likely cheaper to fight this now than risk going to court or paying a settlement—both outcomes they are very familiar with—is taking the matter to the Supreme Court. 

A recent editorial in the NY Times states this is “probably a smart legal move, given the Read the rest of this entry »

Tags: Discrimination, Employment, Fair Pay, Wal-Mart, Walmart
Posted in Employment | 2 Comments »

JetBlue’s Steven Slater: Working Class Hero or Psycho?

August 13th, 2010. By janem

JetBlue flight attendant Steven Slater is getting his 15 minutes of fame and then some, for going ballistic on passengers, grabbing a few beers from the galley (coming to a beer commercial soon) before sliding down an emergency chute, making his escape and  later arrested. He has become a folk hero for many people and he’s the latest media darling. But what do those JetBlue passengers think of Slater? If airline staff yelled expletives at me I would be upset, to say the least. And I might want to sue the airline for emotional pain and suffering.

Marjorie Briskin, age 53, said that Slater was rude to a passenger over a luggage issue, and thought his behavior was totally inappropriate. Another passenger said Slater was also rude to her when she complained about a coffee stain on her seat—on the other hand, I might fly into a rage if I were told to whip out the spot remover and clean the Queen of Sheba’s seat while trying to deal with a few hundred people fighting for overhead luggage space. So is Mr. Slater a Working Class Hero or Psycho?

Slater has been charged with criminal mischief and reckless endangerment. He most Read the rest of this entry »

Tags: Jet Blue, JetBlue, Steven Slater
Posted in Emerging Issues, Employment | 2 Comments »

Not All Pharma Sales Reps Happy with Novartis Overtime Decision

July 21st, 2010. By AbiK

When it comes to lawsuits that affect a lot of folks, there are always those who feel they’ve come out ahead, and those who don’t…

If you read some of the comments floating around online about the Novartis overtime pay ruling that happened a couple of weeks ago, you just might be surprised. Most of us automatically assume that when someone sues for overtime pay—and wins!—that everyone’s hopping around with glee and a sort of “yeah! screw them!” attitude about the offending employer.

Not so with Novartis.

But it’s not because anyone seems to have a lot of love for Novartis. No, the issue is more about the bigger picture—and the age-old question of “what’s in it for me?”.

Well, if you’re a “sales” representative at Novartis, the “what’s in it for me?” question may be answered with a “not much.” Seems this decision sort of makes you a bit of a non-entity in the scheme of things—ie, the scheme of things being labelled “sales”. What do you do? Do you sell? No. Do you work on the marketing plans—as in a more senior, independent decision-maker role? Uh, no. So you, therefore, don’t meet the outside sales or administrative exemptions for overtime pay—and gee whiz—you can get—and should’ve gotten—overtime pay!

Note, I said “non-entity”. That’s not meant as a low blow here. The fact of the matter is Read the rest of this entry »

Tags: Novartis, Overtime Pay, Pharma Sales Rep
Posted in Emerging Issues, Employment | 1 Comment »