Pharmacy Times

Courts Wrestle with Overtime Pay for Pharmacists

Author: Larry M. Simonsmeier, JD, RPh

Issues of the Cases:

An increasing number of lawsuits have been filed against employers by pharmacists for failure to pay for overtime. Two of the more recent cases are reported this month, wherein courts were asked to determine whether the plaintiff pharmacists were professionals paid on a salaried basis and therefore not entitled to overtime pay.

Facts of the Cases:

The plaintiffs in both cases filed wage disputes under the Fair Labor Standards Act (FLSA) requesting an award for unpaid overtime compensation. In a Texas case, the plaintiff was hired as a salaried night pharmacist and worked a regular schedule of 7 days on, 7 days off, for a total of 80 to 84 hours every 2 weeks. He was paid biweekly. His pay records reflected that he was paid a fixed base salary.

The fact that all the hours were worked during a consecutive 7-day period did not change the pharmacist's weekly salary. For the 7-day period when the plaintiff was not required to be at work, he still received his base salary. The employer never made deductions to the plaintiff's pay in amounts less than a scheduled shift.

The other case was filed by a group of pharmacists in Puerto Rico. In both instances, the defendant employers contended that the pharmacists are exempt from FLSA because they fall within the definition of salaried professionals under the law.

The Courts' Rulings:

Overtime pay was denied in both cases because the plaintiff pharmacists were salaried professionals.

The Courts' Reasoning:

Congress enacted the FLSA in 1938 because the free market failed to adequately protect workers from exploitive conditions. The statute's minimum wage and overtime provisions were designed to protect low-end wage earners from substandard wages and excessive hours.

The FLSA does not apply to any employee in an executive, administrative, or professional capacity. The employer bears the burden of establishing that employees are exempt. To show an exemption, the employer must prove that (1) the employees were paid on a fixed salary, (2) their primary duties consisted of work of an advanced type in a field of science or specialized intellectual instruction, and (3) their work required the consistent exercise of discretion and judgment.

In the Texas case, the judge reasoned that the employee was a salaried worker because he received a predetermined amount for his regularly scheduled hours on a weekly basis. The amount was not reduced if he was late for work or left early.

Under the legal tests used in cases such as these, it was determined that the employee's job involved predominantly work of a professional nature. The pharmacist's duties required that he exercise discretion and judgment in the performance of his job. The fact that he sometimes performed routine tasks that were performed by technicians who were subject to FLSA did not alter his exempt status. Judgment was entered in favor of the employer.

In the other case, the pharmacists argued that they had to adhere to their employer's standard operating procedures and did not generally exercise discretion and judgment in their job performance. The court ruled that the FLSA does not imply an absolute exercise of power. If that were the case, almost no one could be considered a professional employee. Many individuals who exercise discretion and independent judgment often do so after consultation with others. Consulting with others supplements the information a pharmacist has to reach a final judgment.

The judge in the Puerto Rico case noted that professional work is characterized by the application of special knowledge and is not purely mechanical or routine in nature. Some of the professions that fall under this category are law, medicine, accounting, teaching, engineering, architecture, and pharmacy. As compounding pharmacists, the plaintiffs' primary duties consisted of work requiring knowledge of an advanced field of science and also required the exercise of discretion and judgment.

Even while following the employer's standard operating procedures, the pharmacists admitted that they could refuse to process or compound prescriptions that could cause harm to a patient. This exercise of professional judgment exempted the plaintiffs from the overtime provisions of the FLSA.

Larry M. Simonsmeier is Emeritus Professor of Pharmacy Law at Washington State University College of Pharmacy.