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Pharmacists Exempt from Overtime Provisions Under FLSA According to First Circuit
By Jennifer Schubert
[March 2005]
Breaking new ground, the First Circuit Court of Appeals has ruled that pharmacists are exempt from overtime provisions under the Fair Labor Standards Act (FLSA). As the court noted, its decision is the first to address the issue of pharmacists' FLSA-exempt status.
In Jesus-Rentas v. Baxter Pharmacy Services Corp., March 9, 2005, the First Circuit held that pharmacists were exempt professional employees because their primary duty consisted of work requiring (1) advanced knowledge acquired by a prolonged course of specialized study and (2) exercise of discretion and judgment.
The court’s analysis focused on the pharmacists’ exercise of discretion and judgment. It concluded that they exercised discretion and judgment in three ways:
- First, one of the pharmacists’ main duties is to evaluate whether or not a prescription is appropriate and safe for each patient. If they conclude that a drug is contraindicated, they will contact the prescribing doctor on their own initiative and discuss modification of the prescription; failing agreement, they consult with colleagues and supervisors before dispensing the drug.
- Second, pharmacists are responsible for directing the work of multiple technicians, correcting their mistakes, and evaluating their work. Such supervisory responsibility involves exercise of discretion and judgment.
- Third, pharmacists are not closely supervised, indicating that they use discretion and judgment in executing their work.
The court rejected the pharmacists’ argument that they were non-exempt because they relied on protocols and pharmacological data set forth in the employer’s Standard Operating Procedures. It concluded that the pharmacists nevertheless exercised discretion and judgment because they could choose not to follow the SOPs if they judged that harm to a patient might result, and because they participated in reviewing, updating and modifying the SOPs.
The court’s analysis would not extend to pharmacy technicians, who are closely supervised and do not exercise judgment by evaluating potential contraindications of drug prescriptions for particular patients.
Jesus-Rentas was decided under the federal regulations in force before the new FLSA white collar regulations promulgated in 2004. However, the court’s holding will continue to apply under the new regulations, which continue to define an exempt professional employee as one whose primary duty is work requiring advanced specialized knowledge and exercise of discretion and judgment.
If you would like assistance in confirming that the pharmacists in your organization exercise sufficient discretion and judgment in the context of your workplace to be exempt, please call your regular Davis Wright Tremaine employment attorney or the following individuals:
This
Employer Services Advisory is a publication of the Employer Services
Department of Davis Wright Tremaine LLP. Our purpose in publishing
this Advisory is to inform our clients and friends of recent
developments in employer services law. It is not intended, nor should
it be used, as a substitute for specific legal advice as legal
counsel may be given only in response to inquiries regarding
particular situations.
Copyright
© 2005, Davis Wright Tremaine LLP.
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