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Following what lawyers describe as a growing trend in class action overtime litigation, thousands of pharmaceutical representatives are suing eight major drug companies over unpaid overtime for all the hours they spend hawking drugs in doctors’ offices. Currently, more than a dozen such pharmaceutical overtime lawsuits-all of them filed in recent months-are pending in California, Connecticut, New Jersey and New York. Several more are expected to be filed this week in New York, Pennsylvania and possibly Minnesota. Defendants include AstraZeneca, Pfizer Inc., Johnson & Johnson, Amgen Inc., Eli Lilly & Co., GlaxoSmithKline PLC, Bayer Corp. and Hoffman-LaRoche Inc., which has oral arguments scheduled for March 19. The lawsuits are the latest in a series of class actions seeking overtime pay from U.S. businesses in recent years. IBM Corp. last month agreed to pay $65 million to 32,000 technology workers claiming they were intentionally misclassified so they wouldn’t get overtime pay. Rosenburg v. IBM Corp., No. C06-0430 (N.D. Calif.). In October, Wal-Mart Stores Inc. lost a $78 million jury verdict in Pennsylvania in class action involving overtime and rest breaks. Hummel v. Wal-Mart, No. 3757, (Philadelphia Co., Pa., Ct. C.P.). In September, a California judge certified an overtime class action against FedEx Kinko’s alleging hundreds of managers were misclassified as executive employees. Whiteway v. FedEx Kinko’s Office & Print Servs. Inc., No. 05-2320 (N.D. Calif.). An army of ‘pharm-bots’ In the pharmaceutical cases, plaintiffs allege that drug companies are misclassifying them as salespeople, denying them overtime even though they work 50- to 60-hour weeks. They argue that they’re not actually selling anything, but rather acting as public relations representatives who memorize carefully worded scripts about drugs. “These reps aren’t making sales. They’re marketing products to doctors . . . . They are not sales reps, but pharm-bots who do and say as they are told,” said Eric Kingsley of Los Angeles-based Kingsley & Kingsley, who is representing plaintiffs in several of the lawsuits. Some company officials denied the allegations, while others declined comment. Bryant Haskins, spokesman for Pfizer, which is facing federal lawsuits in New York and California, defended the company’s pay practices. Coultrip v. Pfizer, No. 06CV09952 (S.D.N.Y.). “We believe our sales representatives are properly classified as exempt from overtime pay and are well compensated for their responsibilities,” Haskins said. “We don’t believe that the lawsuits have any merit.” Laura King, spokeswoman for AstraZeneca, said “AstraZeneca adheres to the laws and regulations of all the states where it conducts business, and we value the talents and contributions of all our employees. With regard to this case, AstraZeneca intends to defend our position vigorously.” Attorney Mike Delikat of Orrick, Herrington & Sutcliffe’s New York office, who is representing Hoffman LaRoche, declined comment. Frank Dee of McElroy, Deutch, Mulvaney & Carpenter in Morristown, N.J., who represents Johnson & Johnson, also declined comment. Anthony DeMeis, founder of the Pharmaceutical Representative Society of New York, defended the drug industry’s pay practices, saying drug reps are, in fact, salespeople who are allowed bonuses-not overtime-for their work. And the more prescriptions that doctors write, he noted, the higher the bonus. “People can be making $60,000 their first year, not counting a car, computer, phone, home line for work or Internet access,” said DeMeis, a 10-year drug rep who believes the plaintiffs in the overtime litigation are novices and “underperformers” who don’t fully understand the system. Not exactly, countered Charles Joseph of New York’s Joseph & Herzfeld, who is also representing plaintiffs in the overtime lawsuits. “Many of the reps that I’ve spoken to have talked about how they used to love the job . . . .[T]hey had the ability to use true sales skills and creativity,” Joseph said. “But one of the reasons we’ve received so many phone calls is that many of them now call themselves pharm-bots who feel that they’re doing very little but dropping off samples and delivering a canned message.” According to labor and employment attorneys, overtime lawsuits, particularly class actions, have been on the rise since federal wage and hour laws were revised in August 2004 to more strictly define who is eligible for overtime.

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