Questions Presented
1. Whether the Second Circuit’s holding that highly paid pharmaceutical sales representatives are not covered by the FLSA’s administrative exemption, in direct conflict with the Third Circuit, or the outside sales exemption, is contrary to the statute’s text, purpose and DOL’s long-standing regulations.
2. Whether an agency’s break with prior interpretations of its regulations, advanced for the first time in an amicus brief, is entitled to heightened deference under Auer v. Robbins when it is inconsistent with the statute and its regulations, and causes unfair surprise by upsetting 70 years of settled expectations.
Case Updates
Cert. petition denied
February 28, 2011
U.S. Chamber urges Supreme Court to review overtime exemptions under Fair Labor Standards Act
November 05, 2010
NCLC urged the Supreme Court to review whether pharmaceutical sales representatives are exempt from overtime pay under the Fair Labor Standards Act (FLSA). The Second Circuit held that the representatives are not outside sales or administrative employees because the representatives have no role in planning the employer's marketing strategy and do not formulate the core messages they deliver to physicians. In its brief, NCLC argued that Congress defined the term "sale" very broadly and that the Second Circuit's interpretation contradicts 70 years of legal precedent. NCLC warned that the Second Circuit's decision, if left to stand, will affect almost every industry in the country.