(CN) – The 9th Circuit asked the California Supreme Court to resolve whether sales representatives for drug companies like Bayer are subject to state labor protections or whether they fall under an “outside salesperson exemption.”
The high court’s answers to two certified questions will affect multiple class actions accusing Bayer and other drug makers of wrongfully classifying their pharmaceutical sales representatives as exempt from state labor codes, the federal appeals court noted.
It certified the following questions to the state Supreme Court:
“1. The Industrial Welfare Commission’s Wage Orders 1-2001 and 4-2001 define ‘outside salesperson’ to mean ‘any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer’s place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.’ … Does a pharmaceutical sales representative (PSR) qualify as an ‘outside salesperson’ under this definition, if the PSR spends more than half the working time away from the employer’s place of business and personally interacts with doctors and hospitals on behalf of drug companies for the purpose of increasing individual doctors’ prescriptions of specific drugs?
“2. In the alternative, Wage Order 4-2001 defines a person employed in an administrative capacity as a person whose duties and responsibilities involve (among other things) ‘[t]he performance of office or non-manual work directly related to management policies or general business operations of his/her employer or his employer’s customers’ and ‘[w]ho customarily and regularly exercises discretion and independent judgment.’ … Is a PSR, as described above, involved in duties and responsibilities that meet these requirements?”