18 June 2012

Christopher v Smithkline Beecham: must attention be paid?

In shocking -- shocking! -- news, the Supreme Court ruled by a 5-4 majority today in favor of an employer against employees. Actually, the decision in Christopher et al  v. Smithkline Beecham Corp. was so predictable that it wouldn't be worth writing about except for how it points toward the future for the American working class. What happened was that two employees of the pharmaeutical conglomerate sued for back overtime pay, claiming that their work as "detailers" -- representatives who make promotional visits to doctors to talk up the company's products -- did not fall under the category of "outside salesperson" that was exempt from mandatory overtime pay under the 1938 Fair Labor Standards Act. The Department of Labor took the petitioners' side, arguing that they could not be considered salespeople if their work wasn't meant to result in closed sales on the spot. The majority of justices, represented in writing by Justice Alito, rejected this reasoning on the arguably commonsensical assumption that detailers are meant to generate sales for the company in the long run. Alito also rejected the Labor Department's new understanding of detailers' status (as of 2009) as an ex post facto "unfair surprise" that could expose employers to countless lawsuits for overtime compensation. My issue with the ruling isn't with the legal reasoning or with whether detailers are salespersons or not. On those points, I'd agree that detailers are sales reps and that employers shouldn't be subject to retroactive litigation due to a change in regulatory interpretation, not a change in law. The real problem with Christopher is twofold. First, and most obviously, it shows again the Republican justices' tendency to side with employers against employees and regulators. Second, it's a bad omen for a future when more Americans will probably have to be sales reps of some sort rather than actual productive workers, and when more of them will more likely be off the clock rather than punching one. It shouldn't be hard to imagine businesses structuring their sales forces so that more will fall into categories ineligible for overtime, existing simply to "promote" rather than sell. The majority in Christopher affirms repeatedly that the plaintiffs were well compensated for their work apart from the overtime issue, but the majority's reasoning will remain valid even if future workers aren't as well compensated, but are expected to work however long to get meetings with doctors or any potential customers. The Christopher principle looks lawful but also seems unjust. The obvious solution is to change the law itself rather than tweak the interpretation. That'll require lawmakers responsive to the working class and committed to the idea that working people's rights are not determined by the Market but by the people. And if you have enough legislators of that sort, you'll eventually have jurists who'll uphold that view as well.

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