567 U.S. 142 (2012), 11-204, Christopher v. SmithKline Beecham Corp.

Docket Nº:11-204
Citation:567 U.S. 142, 132 S.Ct. 2156, 183 L.Ed.2d 153, 80 U.S.L.W. 4463, 23 Fla.L.Weekly Fed. S 377
Opinion Judge:Alito, Justice.
Attorney:Thomas C. Goldstein argued the cause for petitioners. Malcolm L. Stewart argued the cause for the United States, as amicus, by special leave of court. Paul D. Clement argued the cause for respondent.
Judge Panel:Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined, post, p. 169. Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor, and Just...
Case Date:June 18, 2012
Court:United States Supreme Court

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567 U.S. 142 (2012)

132 S.Ct. 2156, 183 L.Ed.2d 153, 80 U.S.L.W. 4463, 23 Fla.L.Weekly Fed. S 377




No. 11-204

United States Supreme Court

June 18, 2012

Argued April 16, 2012.


Christopher v. SmithKline Beecham Corp., 635 F.3d 383 (9th Cir. Ariz., 2011)


[183 L.Ed.2d 161] [132 S.Ct. 2158] The Fair Labor Standards Act of 1938 (FLSA) requires employers to pay employees overtime wages, see 29 U.S.C. § 207(a), but this requirement does not apply with respect to workers employed " in the capacity of outside salesman," § 213(a)(1). Congress did not elaborate on the meaning of " outside salesman," but it delegated authority to the Department of Labor (DOL) to issue regulations to define the term. Three of the DOL's regulations are relevant to this case. First, 29 CFR § 541.500 defines " outside salesman" to mean " any employee . . . [w]hose primary duty is . . . making sales within the meaning of [29 U.S.C. § 203(k)]." § § 541.500(a)(1)-(2). Section 203(k), in turn, states that " '[s]ale' or 'sell' includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition." Second, § 541.501 clarifies that " [s]ales within the meaning of [§ 203(k)] include the transfer of title to tangible property." § 541.501(b). Third, § 541.503 provides that promotion work that is " performed incidental to and in conjunction with an employee's own outside sales or solicitations is exempt work," whereas promotion work that is " incidental to sales made, or to be made, by someone else is not." § 541.503(a). The DOL provided additional guidance in connection with its promulgation of these regulations, stressing that an employee is an " outside salesman" when the employee, " in some sense, has made sales." 69 Fed.Reg. 22162.

The prescription drug industry is subject to extensive federal regulation, including the requirement that prescription drugs be dispensed only upon a physician's prescription. In light of this requirement, pharmaceutical companies have long focused their direct marketing efforts on physicians. Pharmaceutical companies promote their products to physicians through a process called " detailing," whereby employees known as " detailers" or " pharmaceutical sales representatives" try to persuade physicians to write prescriptions for the products in appropriate cases.

Petitioners were employed by respondent as pharmaceutical sales representatives for roughly four years, and during that time their primary objective was to obtain a nonbinding commitment from physicians to prescribe respondent's products in appropriate cases. Each week,

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petitioners spent about 40 hours in the field calling on physicians during normal business hours and an additional 10 to 20 hours attending events and [183 L.Ed.2d 162] performing [132 S.Ct. 2159] other miscellaneous tasks. Petitioners were not required to punch a clock or report their hours, and they were subject to only minimal supervision. Petitioners were well compensated for their efforts, and their gross pay included both a base salary and incentive pay. The amount of incentive pay was determined based on the performance of petitioners' assigned portfolio of drugs in their assigned sales territories. It is undisputed that petitioners were not paid time-and-a-half wages when they worked more than 40 hours per week.

Petitioners filed suit, alleging that respondent violated the FLSA by failing to compensate them for overtime. Respondent moved for summary judgment, arguing that petitioners were " employed ... in the capacity of outside salesman," § 213(a)(1), and therefore were exempt from the FLSA's overtime compensation requirement. The District Court agreed and granted summary judgment to respondent. Petitioners filed a motion to alter or amend the judgment, contending that the District Court had erred in failing to accord controlling deference to the DOL's interpretation of the pertinent regulations, which the DOL had announced in an amicus brief filed in a similar action. The District Court rejected this argument and denied the motion. The Ninth Circuit, agreeing that the DOL's interpretation was not entitled to controlling deference, affirmed.

Held: Petitioners qualify as outside salesmen under the most reasonable interpretation of the DOL's regulations. Pp. 153-169, 183 L.Ed.2d, at 168-178.

(a) The DOL filed amicus briefs in the Second Circuit and the Ninth Circuit in which it took the view that " a 'sale' for the purposes of the outside sales exemption requires a consummated transaction directly involving the employee for whom the exemption is sought." Brief for Secretary of Labor as Amicus Curiae in In re Novartis Wage and Hour Litigation, No. 09-0437 (CA2), p. 11. The DOL changed course after the Court granted certiorari in this case, however, and now maintains that " [a]n employee does not make a 'sale' . . . unless he actually transfers title to the property at issue." Brief for United States as Amicus Curiae 12-13. The DOL's current interpretation of its regulations is not entitled to deference under Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79. Although Auer ordinarily calls for deference to an agency's interpretation of its own ambiguous regulation, even when that interpretation is advanced in a legal brief, see id., at 461-462, 117 S.Ct. 905, 137 L.Ed.2d 79, this general rule does not apply in all cases. Deference is inappropriate, for example, when the agency's interpretation is " '" plainly erroneous or inconsistent with the regulation," '" id., at 461, 117 S.Ct. 905, 137 L.Ed.2d 79, or when there is reason to suspect that the interpretation

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" does not reflect the agency's fair and considered judgment on the matter," id., at 462, 117 S.Ct. 905, 137 L.Ed.2d 79. There are strong reasons for withholding Auer deference in this case. Petitioners invoke the DOL's interpretation to impose potentially massive liability on respondent for conduct that occurred well before the interpretation was announced. To defer to the DOL's interpretation would result in precisely the kind of " unfair surprise" against which this Court has long warned. See, e.g., Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170-171, [183 L.Ed.2d 163] 127 S.Ct. 2339, 168 L.Ed.2d 54. Until 2009, the pharmaceutical industry had little reason to suspect that its longstanding practice of treating detailers as exempt outside salesmen transgressed the FLSA. The statute and regulations do not provide clear notice. Even more important, despite the industry's decades-long practice, the DOL never initiated any enforcement actions with respect [132 S.Ct. 2160] to detailers or otherwise suggested that it thought the industry was acting unlawfully. The only plausible explanation for the DOL's inaction is acquiescence. Whatever the general merits of Auer deference, it is unwarranted here. The DOL's interpretation should instead be given a measure of deference proportional to its power to persuade. See United States v. Mead Corp., 533 U.S. 218, 228, 121 S.Ct. 2164, 150 L.Ed.2d 292. Pp. 153-159, 183 L.Ed.2d, at 168-172.

(b) The DOL's current interpretation--that a sale demands a transfer of title--is quite unpersuasive. It plainly lacks the hallmarks of thorough consideration. Because the DOL first announced its view that pharmaceutical sales representatives are not outside salesmen in a series of amicus briefs, there was no opportunity for public comment, and the interpretation that initially emerged from the DOL's internal decisionmaking process proved to be untenable. The interpretation is also flatly inconsistent with the FLSA. The statute defines " sale" to mean, inter alia, a " consignment for sale," and a " consignment for sale" does not involve the transfer of title. The DOL relies heavily on 29 CFR § 541.501, which provides that " [s]ales . . . include the transfer of title to tangible property," § 541.501(b), but it is apparent that this regulation does not mean that a sale must include a transfer of title, only that transactions involving a transfer of title are included within the term " sale." The DOL's " explanation that obtaining a non-binding commitment to prescribe a drug constitutes promotion, and not sales," Reply Brief 17, is also unconvincing. Since promotion work that is performed incidental to an employee's own sales is exempt, the DOL's conclusion that detailers perform only nonexempt promotion work is only as strong as the reasoning underlying its conclusion that those employees do not make sales. Pp. 159-161, 183 L.Ed.2d, at 172-173.

(c) Because the DOL's interpretation is neither entitled to Auer deference nor persuasive in its own right, traditional tools of interpretation

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must be employed to determine whether petitioners are exempt outside salesmen. Pp. 161-169, 183 L.Ed.2d, at 173-178.

(1) The FLSA does not furnish a clear answer to this question, but it provides at least one interpretive clue by exempting anyone " employed . . . in the capacity of [an] outside salesman." 29 U.S.C. § 213(a)(1). The statute's emphasis on " capacity" counsels in favor of a functional, rather than a formal, inquiry, one that views an employee's responsibilities in the context of the particular industry in which the employee works. The DOL's regulations provide additional guidance. Section 541.500 defines an outside salesman as an employee whose primary duty is " making sales" and adopts the statutory definition of " sale." This statutory definition contains at least three important textual...

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