The U.S. Supreme Court may end up deciding the issue, but for now one circuit court is saying yea and another nay to whether pharmaceutical sales representatives are eligible for overtime pay.

The issue centers on the Fair Labor Standards Act (FLSA) exemption from overtime rules for those employees who are engaged in outside sales.

Pharma reps and their attorneys argue that what the representatives do in the field is not selling but conducting public relations meetings and handing out samples of drugs. Big Pharma, obviously, rejects this costly argument, so the two sides have met in court on various occasions.

The most recent decision came this past Monday (Feb. 14, 2011) when the U.S. Court of Appeals for the 9th Circuit ruled that pharmaceutical representatives are indeed exempt from overtime rules, arguing that:

"The pharmaceutical industry's representatives—detail men and women—share many more similarities than differences with their colleagues in other sales fields, and we hold that they are exempt from the [FLSA] overtime-pay requirement."

Earlier, the 2nd Circuit Court had ruled that the reps are not exempt and are due overtime pay. 

In both decisions, the Department of Labor (DOL), overseer of the FLSA, submitted amicus briefs contending that pharmaceutical representatives are indeed eligible for overtime pay.

The issue would now appear to be moving for a SCOTUS review.