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Having already struck out on a&nbsp;curveball they thought was a fastball over the middle of the plate,&nbsp;Schering Corp.&nbsp;is now&nbsp;0 for 2 following the latest ruling from the Connecticut federal district&nbsp;court in&nbsp;<a href="https://employmentclassactionreport.bakerhostetlerblogs.com/wp-content/uploads/sites/8/2011/08/Kuzinski-et-al.-v.-Schering-Corp.pdf">Kuzinski et al. v. Schering Corp.pdf</a>., Case No. 3:07-cv-0233-JBA (D. Conn. August 5, 2011).&nbsp; The case began over four years ago, when Schering's sales reps alleged that Schering&nbsp;intentionally misclassified them as exempt under the FLSA.&nbsp; In its first at-bat, Schering argued that the plaintiffs were&nbsp;subject to the FLSA's outside sales&nbsp;exemption, and&nbsp;thus not entitled to overtime.&nbsp; Given the decades&nbsp;of support for this proposition, the crowd (and, most likely, Schering) perhaps expected a long drive to deep centerfield...a-wayyyy back...gone!&nbsp; The&nbsp;court, however, added a&nbsp;previously unseen curveball&nbsp;to&nbsp;its repertoire, finding that the outside sales exemption was not available because&nbsp;Schering's sales reps did not actually sell their products directly to consumers.&nbsp; Rather, according to the court,&nbsp;the sales reps&nbsp;merely encouraged doctors to prescribe the company's products, which indirectly resulted in increasing sales.&nbsp;&nbsp;Subsequently, the Second Circuit approved this analysis in In re Novartis Wage and Hour Litig., 611 F.3d 141, 150 (2d Cir. 2010). Undaunted&nbsp;by its&nbsp;first strikeout, Schering strode out of the dugout a second time, knocked the dust&nbsp;from its&nbsp;cleats, and stepped into the batter's box again with a new argument: that&nbsp;its&nbsp;sales reps were&nbsp;covered by the FLSA's administrative exemption because they exercised discretion and independent judgment in&nbsp;promoting the sale of&nbsp;Schering's drug products.&nbsp; The court shook off this changeup; however, striking Schering out yet again.&nbsp;&nbsp;In so holding, the court compared the&nbsp;plaintiffs to the "employee in the clothing store who assists customers in finding their size of clothing," who&nbsp;"roams the floor" and adjusts her sales pitch to promote particular products to individuals.&nbsp;&nbsp;The court&nbsp;particularly noted in this regard that&nbsp;the exercise of discretion and independent judgment with respect to matters of significance&nbsp;requires more than "the use of skill in applying well-established techniques, procedures, or specific standards."&nbsp;&nbsp;(It should be noted that the Second Circuit reached the same conclusion in regarding to the&nbsp;administrative exemption in its&nbsp;Novartis decision mentioned above.) Thus, unfortunately for Schering, it was back to the dugout, 0 for 2 in its first two at-bats.&nbsp; The Bottom Line: Given the circuit split on whether pharmaceutical sales reps are covered by the outside sales exemption (see&nbsp;Christopher v. SmithKline Beecham Corp., 635 F.3d 383 (9th Cir. 2011) and&nbsp;the unavailability of the FLSA's administrative exemption, pharmaceutical companies will remain somewhat in limbo as to whether they may appropriately treat such employees as exempt.&nbsp; Moreover, this uncertainty is not likely to be resolved&nbsp;unless and until the Supreme Court weighs in on the issue, and the Court notably&nbsp;denied certiorari in the&nbsp;Novartis case. &nbsp;

If At First You Don’t Succeed….Your “Plan B” Will Probably Fail, Too