Pharmacutical Reps Can You Go Off Script?
The key question that must be answered by you and by the courts in determining the merit of these claims is: HOW SCRIPTED ARE YOU?
At the end of the day the court are going to want to find out how much ability the reps had to make choices in how to approach a particular doctor and how much was dictated by company policy. While every job has a certain amount of discretion, it is our belief that any discretion in the job was primarily personality driven rather than any message that was being conveyed. In most companies we have found that various core messages were provided and a few detail pieces and then the rep could choose amongst the various “tools” to “sell” the various products. It is this author’s opinion that in almost all the cases the judge will see that the discretion if any was very limited and will not raise to the level of the administrative exemption. If this is so overtime will be owed for the unpaid time. This can go back 2-3 years under federal law and up to 6 years under New York law. Other states vary.
Reps have no say in what the pharma sales detail script says. During “ride alongs,” company managers would grade the reps on how they stayed on “script” Many time I was told by my manager, “You are not paid to think! You are paid to recite the script you were given.” How a judge can not see that is beyond me.