Overtime lawyers and attorneys in Pennsylvania, New Jersey, and Delaware should be aware of two recent Third Circuit holdings that pharmaceutical sales representatives fell within the FLSA’s administrative exemption to overtime coverage. In the first decision, Smith v. Johnson and Johnson, 593 F.3d 280 (3d Cir. 2010), the court emphasized that it was not adopting a per se rule that pharmaceutical sales representatives can never fall outside of the exemption. See 593 F.3d at 293 n.1. The court then concluded, based on the underlying factual record, that the plaintiff was exempt based on her own admissions during deposition that she exercised significant discretion and independent judgment. After reading the opinion, one is left puzzled as to why this plaintiff thought she could win an appeal. In the second case, Baum v. Astrazeneca, 2010 U.S. App. LEXIS 6047 (3d Cir. Mar. 24. 2010), the court affirmed the grant of summary judgment against another pharmaceutical sales rep after observing that her duties “were very similar to the palintiff’s duties in Smith.” As usual, bad facts make bad law.
