U.S. Supreme Court: Pharmaceutical Sales Reps are FLSA Exempt

The Supreme Court resolved a split between circuit courts and held that pharmaceutical sales representatives engage in "sales" and therefore are exempt under the Fair Labor Standards Act.

Under the FLSA and California law (and other states' laws), "outside salespersons" are exempt from minimum wage and over time law.

The issue for the Supreme Court was that pharmaceutical reps do not really "sell" drugs to doctors. They "sell" to the doctor that the doctor should promise to prescribe the pharma company's medicine.  Plaintiffs argued that because the rep makes no "sale" he or she should not be considered a salesperson.  Rather, they are non-exempt "promoters."

The Department of Labor took the position that Pharmaceutical reps were non-exempt beginning in 2009.  But the DOL's reasoning apparently evolved as to "why."  According to the Court, the Agency argued:

“[a]n employee does not make a ‘sale’ for purposes of the ‘outside salesman’ exemption unless he actually transfers title to the property at issue.” Brief for United States as Amicus Curiae 1213 (hereinafter U. S. Brief).13 .

That would seem to remove from the exempt a whole lot of sales persons who previously were exempt, and it was much narrower than regulations and prior case law.  So, the Court refused to defer to the DOL interpretation.

The decision was 5-4.  The dissent agreed that the government's own interpretation was not worth much.  But the dissent's opinion was that the duties performed do not amount to "sales" but rather were promotion activities and non-exempt.

This decision may not directly affect California's outside sales exemption. But it should, because California law does not go into any level of detail regarding what is an "outside salesman."  Therefore, the courts and agencies may will follow the Supreme Court's opinion regarding what counts as a sale.

The case is Christopher v. Smithkline Beecham and the opinion is here.

U.S. Dept of Labor to Cut Overtime Exemption for Home Caregiver Agencies

The Fair Labor Standards Act exempts from minimum wage and overtime law:

domestic service employees employed ``to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves (as 
such terms are defined and delimited by regulations of the 
Secretary). 

Section 13(b)(21) exempts any employee employed "in domestic service in a household

and who resides in such household."

Under current regulations, an employer such as an agency can employ these caregivers and live-ins and treat them as exempt under the FLSA.  That is, qualifying employees would be paid a certain amount of money to perform the duties without tracking their time or receiving overtime premiums.  Presumably, the agencies markup this rate to add overhead and profit and then charge the patient a fixed amount of money for the service.

The U.S. DOL has issued a proposed regulation (here)  that would prohibit home care agencies from treating caregivers as exempt.  However, individual caregivers not employed by an agency or its individual employer (the patient or patient's family) still may assert the exemption.  (Note - After a humongous analysis and notice of proposed rule making, the proposed regulations are all the way at the very end of the link).  Here is the section that applies to third party agencies:

Sec.  552.109  Third Party Employment.

    (a) Third party employers of employees engaged in companionship services within the meaning of Sec.  552.6 may not avail themselves of the minimum wage and overtimeexemption provided by section 13(a)(15) of the Act, even if the employee is jointly employed by the individual or member of the family or household using the services. However, the individual or member of the family or household, even if considered a 
joint employer, is still entitled to assert the exemption, if the employee meets all of the requirements of Sec.  552.6.
    (b) * * *
    (c) Third party employers of household workers engaged in live-in domestic services within the meaning of Sec.  552.102 may not avail themselves of the overtime exemption provided by section 13(b)(21) of the Act, even if the employee is jointly employed by the individual or member of the family or household using the services. However, the individual or member of the family or household, even if considered a 
joint employer, is still entitled to assert the exemption.

This is one cryptic draft regulation. Even if the individual's family is a joint employer with whom?? The public can comment until Feb. 27, 2012.  Maybe they'll clear it up.

The proposed regulation also revises the definition of "companionship services" and "live-in domestic services.  To see those, click the link above and scroll way down to the draft regulation at 552.6.  Employees who do not pass the duties tests in these regulations also must be treated as non-exempt - by individual employers and agencies alike.

California employers will be affected by this, because the federal rule will apply even if California would extend the exemption to home agencies.  If federal law says no exemption, that controls.   Also, this change would not affect most employers. But it sure will affect people who count on home care agencies to deliver services.  Who is going to pay for the overtime and other obligations (like record keeping) that the lost exemption will cause?   

DGV

Ninth Circuit Interprets Learned Professional Exemption

The State of Washington's Department of Social and Health Services employ social workers, whom the agency classifies as exempt under the Fair Labor Standards Act.  The state relies on the "learned professional exemption," which means "an employee whose primary duties require 'knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction.'” 29 C.F.R. § 541.300(a)(2)(I).

The state's requirements for social worker positions included:

at least a “[b]achelor’s degree or higher in social services, human services, behavioral sciences, or an allied field,” as well as eighteen months as a Social Worker 1 or two years’ experience in an equivalent position. Candidates for Social Worker 3 must meet the same educational requirements and have additional work experience. Within one year of their appointment, new employees in these positions must complete a formal training program that includes four weeks of classroom instruction and two weeks of field instruction.

The state also had guidance regarding when equivalent work experience could substitute for specialized degrees.

Reversing the district court, the court of appeals decided that the social worker position was not "exempt" automatically and required a trial to find out the facts.  The court explained:

while social workers no doubt have diverse jobs that benefit from a multi-disciplinary background, 6 the “learned professional” exemption applies to positionsthat require “a prolonged course of specialized intellectual instruction,” not positions that draw from many varied fields. While particular coursework in each of the acceptable fields may be related to social work, DSHS admits that it does not examine an applicant’s coursework once it determines that the applicant’s degree is within one of those fields. For the “learned professional” exemption to apply, the knowledge required to perform the duties of a position must come from “advanced specialized intellectual instruction” rather than practical experience. 29 C.F.R. § 541.301(d). The requirement of a degree or sufficient coursework in any of several fields broadly related to a position suggests that only general academic training is necessary, with the employer relying upon apprenticeship and experience to develop the advanced skills necessary for effective performance as a social worker.

So, the issue is not whether a job requires a college degree generally.  The issue is whether the job requires a college degree in a particulars skill that is directly related to the job.

The case is Solis v. State DSHS and the opinion is here.

U.S. Supreme Court on FLSA Retaliation

The U.S. Supreme Court held that the Fair Labor Standards Act's anti-retaliation provision covers oral and written complaints, whether internal or to the government.  So, here's some invaluable and insightful advice: don't retaliate against employees who complain about alleged wage and hour violations. Try not to decide whether to retaliate based on if a complaint is oral or written, mmmkay?

In a nutshell, Kasten claimed he complained to management and other employees about the location of the time clocks at the St. Gobain factory. Because of the time clock's placement, he did not get paid for "donning and doffing" time.  The company allegedly fired Kasten for not keeping his time card correct. Kasten claimed it was retaliation for his complaints. The district court dismissed the case because Kasten had not "filed" a written complaint with the government and, therefore, was not covered by the anti-retaliation provision in the FLSA.  The Supreme Court took time out of its busy day to resolve a dispute among the lower circuit courts over whether a written complaint was required.

The case is Kasten v. St. Gobain Performance Plastics, Inc., and the opinion is here.

Ninth Circuit: Pharmaceutical Sales Representatives are Exempt under FLSA

The plaintiffs in Christopher v. SmithKline Beecham Corp. were pharmaceutical sales representatives. They visit doctors on behalf of the company and attempt to persuade the doctors to prescribe their particular drugs to patients.  The company argued that these employees were exempt as "outside sales." The employees argued they were not sales persons, primarily because the patients themselves were the buyers, not the doctors.

The Ninth Circuit disagreed, holding that pharmaceutical sales reps obtain "sales" by convincing a doctor to agree to prescribe the product (a non-binding commitment).

The case is interesting for two reasons. First, the court explains what kinds of activities the outside sales exemption covers, and there is not much case law on this in the Ninth Circuit. In particular, there is a lengthy discussion about the difference between "selling" and "promoting."  The former is exempt and the latter is not. Second, the court refused to follow the US Department of Labor's current position on the exemption, which carried the day in another case in the Second Circuit.  In re Novartis Wage & Hour Litig., 611 F.3d 141 (2d Cir. 2010).

California law should follow the FLSA outside sales exemption. So this case may be helpful in California cases as well.  But, as the Novartis case shows, the US DOL and some courts do not agree that pharmaceutical salespersons are exempt, so keep that in mind.

The case is Christopher v. SmithKline Beecham and the opinion is here.

Payroll Company Not an "Employer" for Wage Hour Purposes

If an employer "outsources" payroll services to another company, can that payroll service company be held liable for wage-hour violations as an "employer?"  No.

The California Supreme Court in Martinez v. Combs (discussed here) determined who is liable under California wage and hour law - i.e., who is an "employer."  The court of appeal in Futrell v. Payday California, Inc., applied Martinez's definition of "employer" in deciding that a payroll service provider was not an "employer."

Futrell provided private police / crowd control services for a Reactor, a production company that makes commercials. The production company "payrolled" its employees through Payday, a payroll service company.  Futrell brought a class action against Payday, alleging wage-hour violations. Payday prevailed on a motion for summary judgment because the trial court held Payday was just a vendor of Futrell's actual employer, the production company.

The court of appeal held that Martinez restricts who may be held liable for wage-hour violations. The court rejected Futrell's argument that Payday exercised control over his wages:

There is no evidence in the record showing Payday exercised any control over Futrell‟s hours or working conditions. Reactor hired Futrell, and arranged and supervised the location shoots. . . . This means the only possible linchpin for finding that Payday was Futrell‟s employer is whether Payday “exercised control over his wages.”


If Payday had merely collected tax information from workers, kept track of time cards, calculated pay and tax withholding, and submitted reports to Reactor detailing such information, leaving it for Reactor to issue paychecks to the workers on its productions, we would have an easy case; Reactor would be the only employer. In our view, the issue in this case then comes down to whether Payday exercised “control over workers‟ wages” by going beyond handling the ministerial tasks of calculating pay and tax withholding, and by also issuing paychecks, drawn on its own bank account. We think not.

. . .. . Writing on a clean slate, we conclude that “control over wages” means that a person or entity has the power or authority to negotiate and set an employee‟s rate of pay, and not that a person or entity is physically involved in the preparation of an employee‟s paycheck. This is the only definition that makes sense. The task of preparing payroll, whether done by an internal division or department of an employer, or by an outside vendor of an employer, does not make Payday an employer for purposes of liability for wages under the Labor Code wage statutes.

The court then reached a similar conclusion under the federal Fair Labor Standards Act:

Although the FLSA applies a slightly different test than California law, the predominant factor remains the control an alleged employer exercises over an employee. Incorporating the reasons explained above into the FLSA test, we find Payday was not Futrell‟s employer for purposes of the FLSA. The economic reality existing between Futrell and Payday is that the latter prepared paychecks for the former for the work he performed on behalf of his actual employer, Reactor.

This case will come as good news to PEOs and other HR outsourcing companies, who may have been sued as "joint employers" for wage and hour violations. The court here, though, held that nothing in the opinion affects the analysis of who is the "employer" under any other body of law except wage-hour.

The case is Futrell v. Payday California, Inc. and the opinion is here.

US DOL Clarifies Unpaid Internships

The US Department of Labor issued new guidance regarding unpaid internships (here). The DLSE just got done with their opinion letter (posted here), and here come the feds with a fact sheet of their own. Coincidence? I think NOT! Scuse me, I need to dry clean my tinfoil hat.

Ninth Circuit Upholds Tip Pooling Under FLSA

The Fair Labor Standards Act does not prohibit employers from allocating tips under a tip pool, if the employer does not apply a "tip credit" to satisfy the minimum wage obligation.
The Fair Labor Standards Act permits payment of a sub-minimum wage to tipped workers, so long as the base subminimum wage plus tips exceeds the normal minimum wage.
The plaintiffs claimed that the employer's allocation of pooled tips violated the Fair Labor Standards Act. They raised a number of arguments regarding the validity of the tip pooling arrangement, under which 55-70% of tips were distributed to kitchen and dishwashing staff. But the court said the FLSA does not prohibit tip allocations where the employee earns full minimum wage before tips. When an employer does pay subminimum wage and relies on tips to fill the gap, however, there are restrictions on tip pooling under FLSA (29 U.S.C. s. 203(m)). But those did not apply in this instance.
California law, however, does not permit the subminimum wage. Neither does Oregon law, which is where this case arose. Therefore, employers complying with state law minimum wages will not have to worry about the FLSA when constructing tip pools.

The case is Cumbie v. Woody Woo, Inc. and the opinion is here.

Ninth Circuit Upholds FLSA OT Plan

Ponoma Valley Hospital pays nurses one rate for 12 hour shifts, and a higher rate for eight hour shifts. The nurses requested the 12-hour shifts. To accommodate them, the hospital calculated how much it would have to pay to neutralize the payroll effect of the 12-hour shift.

An employee claimed that the differing rates were a subterfuge to avoid paying overtime under the federal FLSA.

The Ninth Circuit held that it is lawful to pay different rates for different shifts. And it is OK to lower a base rate to minimize paying overtime, as long as it is above minimum wage.
The opinion does not address California wage and hour law.

The case is Parth v. Pomona Valley Hospital and the opinion is here.

Ninth Circuit: Commute in Employer's Vehicle Not Compensable Time

Lojack, the car security company, required employees to use a company vehicle between home and the first work assignment of the day. Analyzing the FLSA and California law, the court held such time is not compensable. The employee did not have sufficient work responsibilities over and above using the company car. This part of the opinion was decided 2-1 with one dissenter.

The district court had rejected the employee's claim that time spent washing his uniform, the car, and other incidental work was not compensable "preliminary" activity under either federal or California law. The employees did not appeal that conclusion.

But the court of appeals held that mapping out his route, prioritizing his jobs for the day, and receiving instructions on the day's jobs were non-compensable either because they are part of the commute, or because they did not take up sufficient time and, therefore, were "de minimis." This decision was 2-1 with one dissenter.

The test for "de minimis" work that is not compensable includes three factors:

(1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of the additional work.

The court of appeals found, however, that employees may have to be compensated for a "postliminary" activity: uploading his data in his handheld computer to the company's system. The court found that doing so was integral to his job, required attention if the upload was unsuccessful, and was performed every day. The court said that the record was unclear as to whether the work was "de minimis," but concluded that it was not based on the facts before it. This decision was 2-1, with one judge dissenting.

The court also declined to adopt the "continuation of the workday" principle that other courts have adopted. Under that standard, even commute time is compensable if the employee performs substantial work at home and then heads out to work somewhere else.

So, the postliminary activity survived summary judgment. Everything else was rejected.

The opinion is Rutti v. Lojack Corp., Inc. and the opinion is here.

Ninth Circuit: Everyone's an Employer under FLSA

So, the FLSA's wage and hour provisions receive little attention in California. But with the bad economy and companies going bankrupt, the Ninth Circuit Court of Appeals may have just given plaintiffs a reason to heart federal court.

Boucher and a couple of others worked for the Castaways Hotel in Nevada. The Castaways filed for Bankruptcy protection. Later, it fired the plaintiffs. Undeterred by their former employer's insolvency, they sued the CEO, CFO and a senior manager responsible for labor relations (hi, HR managers!).

The defendants asked the district court to dismiss the case because they were not the plaintiffs' employer - that was the Castaways' role. The district court obliged. But the Ninth Circuit reversed as to the federal claims. As to claims brought under Nevada's wage and hour laws, the Court of Appeals, relying on the Nevada Supreme Court's opinion, held that individuals cannot be held liable.

As to the FLSA claims, however, the Court decided that the individuals could be held liable as employers. They got no help from the defendants, who did not argue the point apparently. Here is the money quote:

In the case at bar, Ballard has alleged that Defendant Villamor was responsible for handling labor and employment matters at the Castaways; Defendant Shaw was chairman and chief executive officer of the Castaways; and Defendant Van Woerkom was the Castaways’ chief financial officer and had responsibility for supervision and oversight of the Castaways’ cash management. The plaintiff also alleges that Shaw held a 70 percent ownership interest in the Castaways, Villemor held a 30 percent ownership interest and all three defendants had “control and custody of the plaintiff class, their employment, and their place of employment.” (See Complaint ¶¶ 9-11.)
Accepting these allegations of material fact as true, Ballard’s claim withstands a motion to dismiss. . . .

The individuals spent their brief arguing that the bankruptcy proceedings by the Castaways insulated them from liability. Logically, if the individuals stand in the shoes as employers under FLSA, then they should be covered by the Castaways' bankruptcy too, right? Nope.

We have never addressed the question whether a company’s bankruptcy affects the
liability of its individual managers under the FLSA. But our case law regarding guarantors, sureties and other non-debtor parties who are liable for thedebts of the debtor leaves no doubt about the answer: the Castaways bankruptcy has no effect on the claims against the individual managers at issue here.

So, the plaintiffs could proceed against these senior managers who owned The Castaways by suing under the FLSA, even though the Castaways went bankrupt and eventually liquidated.

The case is Boucher v. Shaw and the opinion is here.

Court of Appeal: Labor Code Provisions Don't Apply to Public Entities Unless They Expressly Are Made Applicable

The court of appeal held that Labor Code sections 510 (overtime) and 512 (meal periods) do not apply to government entities because the Legislature did not expressly say they were applicable. AB 60, the bill codified in the 500's of the Lab. Code, has a provision applying some of its provisions to a narrow class of government entities. But not these provisions, and not against this agency. Therefore, the Arvin-Edison Water Storage District's demurrer to a wage and hour class action was upheld on appeal.

The most interesting argument was that Wage Order 17, applicable to "Miscellaneous" employees, brought a water district within the scope of the wage orders, daily overtime, and meal periods. Nope. The intent of Wage Order 17, the court reasoned, was to include employees within some new industry or occupation not contemplated before. But water districts have been around for a long time.

The court also held that sections 201-203, addressing timing of final pay and waiting time penalties, did not apply to a water district. That's because section 220 exempts government entities, including "other municipal corporations." Water districts are "other municipal corporations" under prior case law.

This means that water districts, like other government entities, are subject only to the federal FLSA, unless a state wage and hour law expressly applies. Perhaps our state and local governments will save some money defending against these class actions now, and slightly shrink their incredible deficits. ::::Off soapbox::::

This case is Johnson v. Arvin-Edison Water Storage Dist. and the opinion is here.

DGV

Ninth Circuit Withdraws "Flyover" Wage and Hour Case

We posted about Sullivan v. Oracle here, and blew a weekend on an article (you don't have to read) here. That's the case where the court of appeals held that an out of state resident is covered by California's wage and hour laws even when he or she works only briefly in California.

The Ninth Circuit decided to withdraw the opinion, here. Instead, the court certified three questions to the California Supreme Court:

First, does the California Labor Code apply to overtime work performed in California for a California-based employer by out-of-state plaintiffs in the circumstances of this case, such that overtime pay is required for work in excess of eight hours per day or in excess of forty hours per week?

Second, does § 17200 apply to the overtime work described in question one?

Third, does § 17200 apply to overtime work performed outside California for a California-based employer by out-of-state plaintiffs in the circumstances of this case if the employer failed to comply with the overtime provisions of the FLSA

So, the California Supreme Court, if it accepts the Ninth Circuit's invitation, will give its input and then the Ninth Circuit presumably will re-issue its opinion with the benefit of California's high court's analysis. Stay tuned.