Courts Wrestle with Overtime Pay for Pharmacists

Issues of the Cases:

An increasing number of lawsuitshave been filed against employers bypharmacists for failure to pay for overtime.Two of the more recent cases arereported this month, wherein courtswere asked to determine whether theplaintiff pharmacists were professionalspaid on a salaried basis and thereforenot entitled to overtime pay.

Facts of the Cases:

The plaintiffs in both cases filedwage disputes under the Fair LaborStandards Act (FLSA) requesting anaward for unpaid overtime compensation.In a Texas case, the plaintiff washired as a salaried night pharmacistand worked a regular schedule of 7days on, 7 days off, for a total of 80 to84 hours every 2 weeks. He was paidbiweekly. His pay records reflectedthat he was paid a fixed base salary.

The fact that all the hours wereworked during a consecutive 7-dayperiod did not change the pharmacist'sweekly salary. For the 7-day periodwhen the plaintiff was not requiredto be at work, he still received his basesalary. The employer never madedeductions to the plaintiff's pay inamounts less than a scheduled shift.

The other case was filed by a groupof pharmacists in Puerto Rico. In bothinstances, the defendant employerscontended that the pharmacists areexempt from FLSA because they fallwithin the definition of salaried professionalsunder the law.

The Courts' Rulings:

Overtime pay was denied in bothcases because the plaintiff pharmacistswere salaried professionals.

The Courts' Reasoning:

Congress enacted the FLSA in 1938because the free market failed to adequatelyprotect workers from exploitiveconditions. The statute's minimumwage and overtime provisionswere designed to protect low-end wageearners from substandard wages andexcessive hours.

The FLSA does not apply to anyemployee in an executive, administrative,or professional capacity. Theemployer bears the burden of establishingthat employees are exempt. Toshow an exemption, the employermust prove that (1) the employees werepaid on a fixed salary, (2) their primaryduties consisted of work of an advancedtype in a field of science or specializedintellectual instruction, and (3)their work required the consistent exerciseof discretion and judgment.

In the Texas case, the judge reasonedthat the employee was a salariedworker because he received a predeterminedamount for his regularly scheduledhours on a weekly basis. Theamount was not reduced if he was latefor work or left early.

Under the legal tests used in casessuch as these, it was determined thatthe employee's job involved predominantlywork of a professional nature.The pharmacist's duties required thathe exercise discretion and judgment inthe performance of his job. The factthat he sometimes performed routinetasks that were performed by technicianswho were subject to FLSA didnot alter his exempt status. Judgmentwas entered in favor of the employer.

In the other case, the pharmacistsargued that they had to adhere to theiremployer's standard operating proceduresand did not generally exercisediscretion and judgment in their jobperformance. The court ruled that theFLSA does not imply an absolute exerciseof power. If that were the case,almost no one could be considered aprofessional employee. Many individualswho exercise discretion and independentjudgment often do so afterconsultation with others. Consultingwith others supplements the informationa pharmacist has to reach a finaljudgment.

The judge in the Puerto Rico casenoted that professional work is characterizedby the application of specialknowledge and is not purely mechanicalor routine in nature. Some of theprofessions that fall under this categoryare law, medicine, accounting, teaching,engineering, architecture, andpharmacy. As compounding pharmacists,the plaintiffs' primary dutiesconsisted of work requiring knowledgeof an advanced field of scienceand also required the exercise of discretionand judgment.

Even while following the employer'sstandard operating procedures, thepharmacists admitted that they couldrefuse to process or compound prescriptionsthat could cause harm to apatient. This exercise of professionaljudgment exempted the plaintiffs fromthe overtime provisions of the FLSA.

Larry M. Simonsmeier isEmeritus Professor ofPharmacy Law atWashington State UniversityCollege of Pharmacy.