Overtime Lawyer Blog

The U.S. Supreme Court has just agreed to review Christopher v. SmithKline Beecham Corp., a significant case concerning pharmaceutical sales representatives. At issue, whether the sales reps are considered exempt or not exempt under the Fair Labor Standards Act (FLSA). If the court determines the reps are “outside salespersons” they would be considered exempt under the FLSA and not entitled to overtime pay. Alternatively, the sales reps would be entitled to receive back wages and overtime compensation if the court determines the reps do not fall within the "outside salesperson" exemption. Although the 9th Circuit found that the reps were exempt, the 2d Circuit found they were not. The Supreme Court's decision will provide critical guidance concerning the application of the "outside sales exemption."

Determining whether a worker is exempt v. non-exempt is one of the most frequently disputed matters in employment law. This determination can seriously affect the amount of money a worker brings home in wages and overtime. According to the FLSA, all non-exempt employees are entitled to overtime pay at a rate of one and one-half times their regular rate of pay for all hours worked in any workweek. If you have questions concerning your classification and whether you are entitled to overtime pay, it is a good idea to speak to a knowledgeable wage and hour lawyer.

In Christopher v. SmithKline Beecham, the U.S. Court of Appeals for the 9th Circuit determined that pharmaceutical sales representatives were exempt from overtime based on the FLSA’s outside sale exemption. In order to meet the outside sales exemption, an employee must meet the following tests:

• That his or her primary duty is making sales or obtaining orders or contracts; and
• The employee must be “customarily and regularly” engaged not at the employer’s place of business

The 9th Circuit determined that even though pharmaceutical sales reps do not “sell” to doctors, a “common sense” interpretation of their duties placed them within the terms of the outside sales exemption.

Previously, in a case involving similar issues, In re Novartis, the 2d Circuit determined just the opposite - that the outside sales exemption did not apply to pharmaceutical sales reps, and as a result, the workers were entitled to overtime pay. Specifically, the 2d Circuit determined that because federal law prohibits the sales reps from entering into contracts to sell the pharmaceutical products, they do not qualify for the exemption.

Continue reading " Supreme Court To Review Whether Pharmaceutical Sales Representatives Are Exempt Under The Fair Labor Standards Act in Christopher v. SmithKline Beecham Corp. " »

With the year-end approaching and the holiday season upon us, many workers wonder about holiday pay and overtime pay, and what compensation they are entitled to under state and federal laws.

One of the first questions is to consider is whether you are exempt or non-exempt. Exempt employees are generally those that make a certain amount of money per week and perform certain types of “white collar” work. Non-exempt workers are typically hourly workers. If you have questions concerning whether you are exempt v. non-exempt, an experienced Georgia overtime attorney can help answer your wage and hour questions.

If you are a non-exempt employee, you may be entitled to holiday pay and overtime pay. Although the Fair Labor Standards Act (FLSA) doesn’t require payment for time off – you may be entitled to pay for these days based on an employment agreement.

If you do work holidays and are considered non-exempt, this may be a great way to earn extra money in holiday and overtime pay. In some situations, you may be entitled to receive holiday pay. For example many jobs pay double-time to employees required to work on a holiday. Holiday pay is different than overtime – you are entitled to receive holiday pay for all non-overtime hours worked on a holiday. If you work overtime on a holiday, then you may also be entitled to overtime pay. Overtime pay is calculated at one and one-half times your regular rate of pay for every hour worked in excess of 40 hours in a workweek.

Continue reading " Am I Entitled To Holiday Pay? " »

A recent case out of Las Vegas places the tip sharing policies of some high profile casinos under intense scrutiny. At issue – a tip sharing policy that requires Las Vegas Strip casino workers to share their tips with their supervisors. Last week the Nevada District Court ruled that the policy in place at Wynn Resorts including Wynn Las Vegas and Encore, violates state law and that employees can’t be forced to share tips with supervisors or employees in other types of jobs.

Tip sharing policies can be complex – certain guidelines must exist to ensure workers receive all the pay they are entitled to. If you are a tipped employee and are unsure if your company’s tip sharing policy complies with federal or state law, it is important to consult with a knowledgeable Georgia overtime attorney.

Smith v. Wynn involved a dispute between table games dealer and their employer over the distribution of tips left by patrons. Wynn Resort employed several different types of tipped workers including table games dealers, slot department employees, poker dealers, valet parking attendants and cocktail waitresses. The table games department also had various types of employees – dealers, box persons and Casino Service Team Leads (CSTLs). Under the tip pooling policy, dealers were required to share their tips with the box men and CSTLs. While tip sharing is common among workers of the same job classification, sharing with supervisors may be problematic. A Nevada District Court judge determined that the policy in question violated state law.

In general, tip-sharing policies must follow certain guidelines including:

• Tips belong to employees, not the employer. Employees cannot be required to turn over part of their tips to the company except as part of a valid tip pooling arrangement.
• The employer cannot be part of a valid tip pooling arrangement
• Only employees who receive tips can be part of a pooling arrangement
• Employers must notify tipped employees of any required tip pool contribution and cannot retain employees’ tips for any other purpose.

Continue reading " Vegas Casino Case- Smith v. Wynn – Finds Tip- Sharing Policies Violate State Law " »

A case being considered by the California Supreme Court has the potential to affect meal and rest breaks for all nonunion employees. At issue in Brinker v. Superior Court is whether an employer must ensure that hourly employees take breaks.

Currently, the California law provides that workers are entitled to a meal break after five hours of work. However, in practice many workers are unable to take scheduled meal breaks as the result of excessive work loads that worker’s can’t complete in the scheduled work day.

If you have questions concerning whether you are entitled to meal and rest breaks, and whether you are entitled to compensation for this time worked, it is important to speak to an experienced Atlanta wage and hour attorney.

The case was filed by five Brinker employees on behalf of company workers statewide. An estimated 60,000 hourly workers are included in the class action lawsuit. Brinker International operates several chain restaurants including Chili’s Grill & Bar. The workers assert that during busy times, they were unable to take their scheduled breaks.

Employee representatives further allege that based on California Labor Code provisions, employers must ensure that workers actually take those breaks. Making sure that employees are allowed breaks affects “vital protections” concerning the health and safety of workers and members of the public served by them. Company representatives counter that employers must only make the breaks “available” and that workers and managers may be flexible about when the employees actually take those break. Where workers miss a meal break, they may be entitled to one hour of overtime pay.

Continue reading " California Supreme Court Hears Meal And Rest Break Case – Brinker v. Superior Court - Could Affect Workers Across The Country " »

The Fair Labor Standards Act (FLSA) sets forth overtime and wage guidelines that govern nearly every employee in the United States. Included in the FLSA are requirements that employees earn minimum wage and all employees who are not exempt be paid overtime at a rate of one and one-half times their regular rate of pay for all hours worked in excess of 40.

Whether an employee is exempt vs. not-exempt can be a crucial factor in determining how much an employee earns and directly affects if a worker is entitled to overtime. In an attempt to clarify whether computer employees are exempt or not exempt, the Senate has recently introduced the Computer Professionals Update (CPU) Act in attempt to clarify those employees that fall into each category.

For example, in order to be considered “exempt,” currently computer employees must meet the following tests:

• The employee must make no less than $455/week
• The primary duties must consist of:

Applying systems analysis and techniques and procedures, including consultations regarding hardware, software or system specifications;
Designing and developing computer systems or programs;
Designing and developing computer programs related to machine operating systems; or
A combination of the above duties.

• An employee is not considered exempt where their primary duties involve the manufacturing or repair of computer hardware

Continue reading " Computer Professionals Update (CPU) Act Seeks To Modify Whether Computer Professional Are Exempt Or Not-Exempt " »