It’s Really A Horse, But What If We Just Call It A Cow? (Would That Make The Horse A Cow? Of Course, Not!)
By Greg Smith posted in Wage & Hour Claims on Monday, June 1, 2015
Let’s assume you (a lowly employee) are in the middle of a trial, and it’s little old you against your former, and very mighty employer (who’s worth millions). He’s represented by a very well known downtown law firm – and must be paying them over $400 an hour. (Your lawyer’s just a small-time “west side guy.”)
His lawyers keep telling the jury that you are not entitled to any backpay for overtime because you were an “exempt” employee. In other words, by law your job was not the type that got paid overtime. They say you were an “outside salesman,” so you were not entitled to any overtime (or even minimum wage for that matter).
Then, on their powerpoint presentation and on a huge monitor, they show the jury a picture of a huge, gorgeous, white horse. And across the horse’s side are the following bright orange letters: C-O-W. Then, for dramatic effect, one of his attorneys looks at the jurors and bellows, “You see ladies and gentlemen, what you see there is clearly a cow, and anybody that can read should know that.”
Now that example may sound ludicrous, but it’s not that far off the mark. And many employers actually think that so long as they label you exempt, you are exempt. Let’s take the Ruggeri case to make this point. The Court said the following: “Plaintiffs’ . . . positions [were] titled “Sales Representative,” “Professional Sales Representative,” “Specialty Sales Representative,” and “Senior Specialty Sales Representative.” The Court essentially said that the company had labeled them all as pharmaceutical sales representatives (PSRs).
Okay, so there you have the bright orange letters “P-S-R-s!” But did those letters accurately state what kind of “animal” they were painted on? According to the court, no, not at all.
The Court said, “Plaintiffs’ job duty was, centrally, to visit physicians and pharmacies in an assigned geographical territory and present information about, and samples of, Boehringer pharmaceutical products. And the court found that the “sales people” were actually very regimented by their bosses – in other words, the employees did not have a lot of freedom regarding whom they could visit, and what they could say during those visits.
The Court noted that the FLSA specifies that “no employer shall employ any of his employees … for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed,” 29 U.S.C. § 207(a)(1).
The Court noted “the statute creates two exceptions from this requirement relevant to Plaintiffs’ action: the outsides sales exemption and the administrative exemption.” The Defendants claimed Plaintiffs fell “within either or both exemptions.”
But the Court pointed out that “exemptions to the FLSA’s overtime requirement are to be ” ’narrowly construed against the employers seeking to assert them and their application limited to those establishments plainly and unmistakably within their terms and spirit.’ ” In other words, the employer must prove the animal is a cow, not the other way around! It said, “Therefore, “the burden of invoking these exemptions rests upon the employer.” Ruggeri v. Boehringer Ingelheim Pharm., Inc., 585 F. Supp. 2d 254, 258-61 (D. Conn. 2008).
The Court summed it up this way:
Because the “PSRs” did not make any sales or obtain any orders or contracts, they could not be exempt from the overtime pay requirements of the FLSA as outside sales people. In other words, despite the label the company had given them, they were not employees engaging in “outside sales” for pharmaceutical company that employed them. However, the Court said that the so-called “administrative” exemption to the FLSA’s overtime pay requirement may apply, but that the Court needed more facts to determine that. Ruggeri 585 F. Supp. 2d 254 (D. Conn. 2008)
In other words, the Court looks at what the employee actually is, not what the employer says he is.