Plaintiff, a pharmaceutical representative, called upon physicians to discuss various pharmaceutical products. He was required to make a certain number of visits and meet a daily phone call quota. Plaintiff's essential function was ?to effect sales by educating and guiding health care professionals in their purchase and prescription of Wyeth's products [his employer] and by promoting treatment practices that are consistent with approved indications.? In addition to a guaranteed yearly salary, Plaintiff received additional compensation tied to the number of sales of Wyeth's products he assisted in generating.
Plaintiff filed a suit as a class action alleging that Wyeth failed to pay overtime wages, failed to provide meal and rest breaks, failed to itemize his wage statements and accurately report total hours worked by him, and was owed waiting time penalties. Defendant filed a motion for summary judgment claiming, with regard to all of plaintiff?s claims, that plaintiff was subject to the outside sales exemption.
Under the Industrial Welfare Commission (?IWC?) Wage Orders and California Labor Code Section 1171, outside salespersons are exempt from statutory overtime, and meal and rest period requirements. The IWC defines an outside salesperson as ?any person, 18 years of age or over, who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities.? In classifying workers under the exemption, courts look at whether the employee spends more than fifty percent (50%) of his time engaged in sales activities.
The trial court granted Wyeth summary judgment with respect to all plaintiff?s claims, finding that plaintiff fell within the exemption because he was hired on the basis of his sales experience, he received regular specialized sales training throughout his employment, he solicited new business for Wyeth, his pay was determined in part based on commission, he received virtually no direct supervision in his daily work, and he was free to determine which physicians he contacted. While he was to make daily reporting calls to his supervisor and he had call quotas, federal courts have found these workers to be sufficiently unsupervised.

Barnick v. Wyeth, 522 F. Supp. 2d 1257 (2007).

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