Posts Tagged ‘ Overtime Pay ’
Metallica Drummer Accused of Stiffing P.A. Settles Lawsuit
November 17th, 2011. By AbiK
Metallica drummer Lars Ulrich recently settled a wage and hour lawsuit that had been filed by a former personal assistant, Steven Wiig. Wiig claimed a whole bunch of labor law violations: years of unpaid overtime (years!) along with alleged state and federal labor violations, breach of oral contract and continuing wages.
Yep, your run-of-the-mill California overtime lawsuit… NOT! We’re talking METALLICA!
Now, “Metallica” tends to conjure up headbanging images—think Beavis and Butthead (heh-heh)—and a lot of what some folks would call noise. Case in point, their live “Enter Sandman” video showcases some of those whiplash-inducing moves the band is famous for—and famous they are with that video alone having over 52,000,000 views on youtube. They’re the stuff of (hard) rock legend…off to never-never land! (In fairness, they’ve got some memorable ballads in their repertoire as well—like “Nothing Else Matters” (see video above)).
Ok. So they’re rock stars. And unless much has changed in the last oh, fifty plus years, rock stars tend to be magnets when it comes to wannabes wanting coveted jobs like “personal assistant”. Hell, it’s a twenty year old’s fantasy…screw getting a desk job after 4 years of hitting the books. Hit drop/add with the emphasis on “drop” and hit the road. Yeah, you’re down with the roadies, groupies, parties and perks. The all-access pass to backstage glam and prestige…you’re with the band now, man…(& you can advertise that fact with the t-shirt at right, at zazzle.com).
Oh wait—you expected to be paid on an hourly basis as well? And given a bonus each year? Ahh, but see—as with any situation where supply exceeds demand, prices get driven down. Lots of available labor? Labor gets cheap, right? And maybe that’s when labor starts to get—or at least feel—abused.
Hey, you wanted to be with the band…
So here we are with Lars Ulrich getting sued by his personal assistant. It’s an interesting case—similar to the PR hacks complaining not long ago about their compensation—because clearly this guy, Wiig, put up with the deal for “years” (2001-2009). A decade. Why hang so long in a gig that you think is screwing you over?
According to the Marin Independent Journal, Wiig acted as Ulrich’s chauffeur, managed his art collection, handled his scheduling and “other tasks and errands” upon request. That translated to around 70 hours a week, which was upped to 80 hours a week when Metallica was on tour.
Wiig claimed he performed those duties for $45,000 a year. He also claims to have had a verbal agreement (red flag!) for annual bonuses. Of course, according to marinij.com, Ulrich’s side claims Wiig received $110,000 a year before bonuses, free rent and a free car. I suppose only the tax man knows for sure (wink-wink).
At any rate, the two sides have settled (terms not disclosed). My guess is that Wiig came out ahead on this one—but what to do now? Oh yeah, write a memoir “Snared: My Life with Lars Ulrich and Metallica”.
Hollywood Lawsuit #2: PR Peeps Show up at Events, Don’t get Paid?
October 5th, 2011. By AbiK
The difference between this Hollywood lawsuit and yesterday’s post is that this one comes from a PR Rep who was actually on payroll.
Seems Daniel Malakhov—who worked for major PR firm Rogers & Cowan—filed a lawsuit against the firm alleging that he and other Rogers & Cowan publicists were required to work PR events after hours (when else are they typically?)—but they did not receive overtime pay, meal breaks or rest breaks. I suppose it has the makings of your basic California overtime lawsuit, if not perhaps that of a script-worthy plot line.
And let’s face it, if you’ve ever attended a PR event of any sort, it’s the PR folks who are hustling around, playing meet & greet, and ensuring all runs smoothly. Heck, even bathroom breaks can be hard to come by. It’s easy to see where overtime pay could be in order.
Apparently, too, the lawsuit claims that Rogers & Cowan didn’t mandate attendance at PR functions, but in making them voluntary made it clear that failure to attend such events would negatively affect their chances of career advancement.
So Malakhov is thinking bigger here—it’s Hollywood, after all. He’s seeking class action status on this one. And, Malakhov, showing a bit of altruism (?), is looking out for his PR brethren and filing the class action on behalf of all the firm’s employees.
The class action seeks the usual suspects: back wages and damages–along with an injunction that would force Rogers & Cowan to change its after-hours work policies.
In terms of the injunction, however, US District Judge George H. Wu ruled last week that Malakhov could not seek the injunction as Malakhov, himself, could no longer benefit from it as he is no longer an employee of the firm. Needless to say, Malakhov’s side is saying that to reject the injunction would mess with the the ability for the lawsuit to help those current employees who are seemingly still at the mercy of Rogers & Cowan’s existing (alleged) pay practices.
Understand the Pharmaceutical Representative Overtime Lawsuits? Here’s Help
March 25th, 2011. By Kristine B
If not, you’re not alone. In fact, even the courts have reached contradictory rulings in the pharmaceutical representative overtime lawsuits they’ve seen. While the pharma reps won the Novartis lawsuit, they lost the Johnson & Johnson and GlaxoSmithKline lawsuits. Those losses, however, don’t mean that pharmaceutical sales reps should just give up. In each case, the judges relied on different legal issues and exemptions, which is how such different results were achieved. Pleading Ignorance takes a look at what’s been going on…
First, the Backstory: the Fair Labor Standards Act
Under the Fair Labor Standards Act, certain employees are considered exempt from overtime pay. Those exemptions include outside sales employees and people who are considered “administrative”. Outside sales employees are considered exempt because they are paid on commission and therefore have an unlimited earning potential. Furthermore, many outside sales people work independently of an office and therefore have a say in what hours they work and how they go about their job. To be considered exempt from overtime pay, however, outside sales people must spend at least 50 percent of the time in their job involved in sales.
Administrative people are those who exercise independent authority, judgement or discretion in their job. They have a great deal of discretion in their job activities and how they fulfill their employment requirements.
Lawsuits have been filed against various pharmaceutical companies alleging that pharmaceutical sales reps do not fit either the outside sales exemption or the administrative exemption.
Novartis Sales Rep Overtime Lawsuit
In the Novartis lawsuit, the court found that the pharmaceutical reps were misclassified as exempt from overtime pay—meaning they should receive pay for overtime hours worked. In reaching the decision, the court found that Novartis sales representatives were not directly involved in the sales transaction. Instead, the reps informed physicians of a product’s benefits and encouraged physicians to prescribe Novartis products. At no point during the visit did the sales rep actually engage in a sales transaction.
Furthermore, the court found that the Novartis reps didn’t fall under the administrative exemption because Novartis controlled the sales pitches and reps were not allowed to deviate from that pitch. Additionally, the reps did not have the authority to in any way direct or interpret Novartis policies or procedures. Because the courts found the Novartis reps were not exempt under the outside sales or administrative rules, the reps are therefore, according to the courts, eligible for overtime pay.
Johnson & Johnson Sales Rep Overtime Lawsuit
A lawsuit against Johnson & Johnson, however, resulted in a different decision. In that case, the pharmaceutical sales representative was found to be exempt from overtime pay under the administrative employee guidelines. In that case, the court found that the plaintiff was able to develop her own itinerary, could visit some doctors more frequently than others and was expected to develop a plan to obtain more sales. The court found that the plaintiff worked without direct oversight most of the time and therefore had discretion and independent judgment required for the administrative exemption.
GlaxoSmithKline Sales Rep Overtime Lawsuit
In GlaxoSmithKline’s lawsuit over pharmaceutical representative overtime pay, the courts backed GlaxoSmithKline’s decision not to pay the reps overtime. In this case, unlike Johnson & Johnson, the court determined that GSK sales reps fall under the guidelines of outside sales representatives because they are motivated by commissions and they have freedom to work outside the office.
So it currently appears that whether or not a pharmaceutical rep is eligible for overtime pay is somewhat determined by which court hears the lawsuit and by which company you work for and how much authority you have in your job.
The court’s decision in GSK actually contradicted a brief filed by the US Department of Labor that supported pharmaceutical reps being paid overtime. So, even though the Department of Labor supports overtime for pharmaceutical reps, there’s no guarantee that the courts will agree with it. More lawsuits are still to come and the Supreme Court might wind up determining the whole thing in the end. As of now, though, there’s no reason for pharmaceutical representatives to give up the fight.
Thousands may have Claim for Pharmaceutical Sales Rep Overtime
March 2nd, 2011. By LucyC
Well, it looks like the little guys could have it. Yesterday, February 28, 2011, the US Supreme Court announced that it would not reconsider appellate court decisions against Novartis and Merck Schering regarding unpaid overtime class actions.
Essentially, this means that Novartis may have to pony up $100 million or more in back overtime as settlement for some 2,500 plaintiffs.
In so doing, the Supreme Court leaves intact two separate decisions against Novartis and Schering Corp. In July 2010, the 2nd Circuit issued a pair of rulings that found the pharmaceutical sales reps were covered by federal wage-and-hour law.
But—it ain’t over as the expression goes—until the fat lady sings. At least half a dozen pharmaceutical companies are tied up in overtime suits, according to various media sources, and yesterday’s US Supreme Court decision presents a major conundrum. According to the attorneys that represented the Novartis employees, the various rulings against the pharmaceutical companies have ‘opened the floodgates for liability.’ This same law firm is currently representing plaintiffs in four identical wage-and-hour lawsuits against Pfizer, Roche, Merck and Abbott Laboratories. So the bigger question is—does this decision translate into overtime requirements for all pharmaceutical sales reps? (Now we’re talking tens of thousands of workers.)
That remains to be seen, in part because the courts themselves are guilty of issuing conflicting information—other appellate court decisions have decided in favor of the employers. The reason? It’s all down to interpretation. A report in the Star-Ledger indicates that this Supreme Court ruling was partly based on a brief from the Department of Labor that supports the sales’ reps stance on qualifying for overtime pay. As far as Novartis is concerned, they intend to evaluate ‘all legal options.’ Part of an email published in the Star-Ledger, from Novartis, states, “For decades, companies in the pharmaceutical industry have classified their sales representatives as exempt employees and have compensated them on a pay-for-performance basis, the same way they compensate executives, managers and other professionals.”
And, in a brief submitted by Merck, the pharmaceutical company reportedly wrote that another appellate court concluded that “no deference was owed to DOL’s new interpretation expressed in its brief.”(Star-Ledger). Of course Merck isn’t too happy about the Supreme Court ruling either. The company inherited an overtime lawsuit against Schering-Plough, when it acquired SP in 2009.
It doesn’t help that the Supreme Court offered no comment whatsoever on its decision: an explanation making clear their reasons for their decision could have helped in reducing the likelihood of further legal wrangling—which will almost certainly occur because the stakes here are high indeed.
The Pharmaceutical Research and Manufacturers Association (PhRMA), which is the leading trade group representing the US pharmaceutical industry, had argued in its petition to the Supreme Court that the lower court’s decision had “potentially far-reaching ramifications’’ for the industry, and called the decision against Novartis an error. “The decision unexpectedly exposes PhRMA members to potentially staggering retroactive liability from lawsuits by current and former employees,’’ the brief stated. “Serious consequences loom because of nothing more than an unexplained change in the Department of Labor’s interpretation of its regulations.’’ (Star-Ledger)
Of course, none of this changes the fact that the reps who filed the suit against Novartis—more than four years ago now—did put in the time—as much as 70 hours per week, according to their lawyers.
Frankly, I can’t help thinking that the whole debate around unpaid overtime is just a little too Dickensian for 2011, and that a little more clarity would go a long way to improving the situation for both sides.
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 »
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