FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL SHANE CHRISTOPHER; 

FRANK BUCHANAN, individually and

on behalf of all others similarly

situated, No. 10-15257

Plaintiffs-Appellants, D.C. No.  v. 2:08-cv-01498-FJM

SMITHKLINE BEECHAM OPINION

CORPORATION, DBA

GlaxoSmithKline,

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Arizona

Frederick J. Martone, District Judge, Presiding

Argued and Submitted

November 3, 2010—Pasadena, California

Filed February 14, 2011

Before: Mary M. Schroeder, Richard C. Tallman, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2331
COUNSEL

Michael R. Pruitt, Esq.; Christine F. Crockett, Esq., Jackson

White, P.C., Mesa, Arizona, for plaintiffs-appellants Michael

Christopher and Frank Buchanan.

Neal D. Mollen, Esq.; Barbara L. Johnson, Esq., Paul Hastings Janofsky & Walker, L.L.P., Los Angeles, California, for

defendant-appellee SmithKline Beecham Corporation. 

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants Michael Christopher and Frank

Buchanan appeal the judgment of the district court that they

are not entitled to overtime pay under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201 et seq. Plaintiffs

were employed as Pharmaceutical Sales Representatives

2334 CHRISTOPHER v. SMITHKLINE BEECHAM
(PSRs) for Defendant-Appellee SmithKline Beecham Corporation d/b/a GlaxoSmithKline (Glaxo). Glaxo classified Plaintiffs as “outside salesmen”—a legal designation that exempts

an employee from the FLSA’s overtime-pay requirement.

Plaintiffs’ suit challenges Glaxo’s classification and seeks

back pay. 

The district court granted summary judgment to Glaxo. We

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Pharmaceutical Sales Representatives

Glaxo is in the business of developing, producing, marketing, and selling pharmaceutical products. Christopher and

Buchanan began working as PSRs for Glaxo in 2003. Glaxo

terminated Christopher in May 2007. Buchanan’s career at

Glaxo ended when he accepted a PSR position at another

pharmaceutical company. Since the enactment of the Pure

Food and Drug Act of 1906, Pub. L. No. 59-384, 34 Stat. 768,

federal law has, to varying degrees, regulated and influenced

the sale of pharmaceuticals.1 In 1938, the Federal Food, Drug,

and Cosmetic Act, Pub. L. 75-717, 52 Stat. 1040 (codified as

amended at 21 U.S.C. §§ 301 et seq.), clothed the Food and

Drug Administration with broad regulatory authority over,

inter alia, drug manufacturers.2 The Durham-Humphrey

Amendment of 1951 established the first comprehensive

scheme governing the sale of prescription pharmaceuticals to

the public. See Pub. L. No. 82-215, 65 Stat. 648 (1951) (codified at 21 U.S.C. § 353(b)). Importantly, for our purposes,

Durham-Humphrey formalized the now well-established dis1Cf. Francis B. Palumbo & C. Daniel Mullins, The Development of

Direct-to-Consumer Prescription Drug Advertising Regulation, 57 Food

& Drug L.J. 423, 424-27 (2002). 

2

See Palumbo & Mullins, supra, at 425 & n.17. 

CHRISTOPHER v. SMITHKLINE BEECHAM 2335
tinction between prescription and over-the-counter drugs.3

The Controlled Substances Act of 1970, Pub. L. 91-513, 84

Stat. 1260, continues the prescription/non-prescription dichotomy, and prohibits dispensing the former without the authorization of a “practitioner, other than a pharmacist, to an

ultimate user.” 21 U.S.C. § 829(b)-(d). Currently, all pharmaceuticals requiring a physician’s prescription are branded “Rx

only.” 21 U.S.C. § 353(b)(4)(A). 

We analyze this case within the framework of how Glaxo

sells its “Rx only” products to an “ultimate user.” A key,

undisputed fact underlying our analysis is that the ultimate

user—the patient—cannot purchase a prescription drug without first obtaining a physician’s authorization. 

Because Glaxo is proscribed from selling Rx-only products

directly to the public, it sells its prescription pharmaceuticals

to distributors or retail pharmacies, which then dispense those

products to the ultimate user, as authorized by a licensed physician’s prescription. In this restrictive sales environment,

Glaxo employs PSRs to make “calls” on physicians to encourage them to prescribe Glaxo products. On calls, PSRs typically present physicians with a variety of information about

Glaxo products, provide product samples, and attempt to convince the physicians to prescribe Glaxo products, when medically appropriate, over competitor products. PSRs also try to

build business relationships with physicians, respond to their

concerns, and recruit them to attend Glaxo-organized dinners

and conventions. Each PSR is responsible for a particular

“drug bag” of medications he or she tries to induce physicians

to prescribe. As perceived by the Plaintiffs, the primary duty

of a PSR is to communicate features and benefits of Glaxo

products to physicians. In Buchanan’s words, he tried to “convince prescribers that the benefits of [Glaxo’s] products warranted them prescribing that product to the appropriate

patient.” 

3

See Palumbo & Mullins, supra, at 426. 

2336 CHRISTOPHER v. SMITHKLINE BEECHAM
PSRs usually work outside of a Glaxo office and spend

much of their time traveling to the offices of, and working

with, physicians within their assigned geographic territories.

Plaintiffs visited between eight and ten physicians each day,

usually between the hours of 8:30 a.m. and 5:00 p.m. Plaintiffs claim that they worked between ten and twenty hours

each week outside of normal business hours, for which they

received no overtime wages. When not making calls on physicians, Plaintiffs studied Glaxo products and relevant disease

states, prepared new presentation modules, answered phone

calls, checked email, generated reports, and attended events

on evenings and weekends. 

Before a PSR makes his or her daily calls, Glaxo provides

him or her with detailed reports about the physicians he or she

will visit. These reports include information about a physician’s prescribing habits and drug preferences, the market

volume of Glaxo products prescribed by the physician versus

the volume of competitor products, and the volume of prescriptions filled in a particular region. Glaxo also provides

each PSR with a budget to use for speaker programs and to

engage socially with physicians. 

Glaxo prepares and provides information about its products

—called “Core Messages”—for PSRs to present to physicians

during calls. Core Messages include information about product benefits and risks, dosage instructions, and the types of

patients for whom Glaxo recommends each product. Glaxo

expects PSRs to use the Core Messages and then “[d]evelop

and deliver informative sales presentations based on customer

needs.” 

PSRs do not carry any prescriptions with them for direct

sale; rather, Glaxo provides PSRs with small amounts of sample products to distribute to physicians. PSRs do not contact

patients or market anything to them. To the contrary, in compliance with federal law, PSRs cannot sell the samples, take

CHRISTOPHER v. SMITHKLINE BEECHAM 2337
orders for any medication, or negotiate drug prices or contracts with either physicians or patients.

Glaxo recruits applicants who have prior sales experience

for its PSR positions. When Glaxo hires new PSRs, it provides them with more than one month of training that focuses

on making presentations, learning about Glaxo products, and

building interpersonal skills. PSRs are taught how to ask for

a commitment from a physician to prescribe Glaxo products

if the physician believes the medication is appropriate. 

Since 2001, Glaxo has instructed PSRs on various methods

of completing a call. When Plaintiffs were hired, they

received training in Glaxo’s “Assertive Selling Always Professional (ASAP)” model. They were also trained to follow

Glaxo’s “Winning Practices” program. ASAP and Winning

Practices are similarly structured and emphasize that a PSR

should: (1) analyze and understand what is happening in an

assigned region; (2) work with the team to drive results; (3)

master professional knowledge to understand clinical management of patients; (4) prepare for calls; (5) “Sell Through

Customer-Focused Dialogue”; (6) obtain the strongest commitment possible from a healthcare professional at the end of

the call; and (7) provide added value to the customer relationship. 

In 2004, Glaxo started a new program called “When? Why?

How?” which distilled the old model into three questions

PSRs should use to bond the targeted physician to the Glaxo

brand: “(1) When should I use this product? (2) Why should

I use this product? (3) How should I use this product?” PSRs

strive to ensure that their targeted physicians have the answers

to all three questions before PSRs leave the physicians’

offices.

Plaintiffs received two types of pay—salary and incentivebased compensation. Incentive-based compensation is paid if

Glaxo’s market share for a particular product increases in a

2338 CHRISTOPHER v. SMITHKLINE BEECHAM
PSR’s territory, sales volume for a product increases, sales

revenue increases, or the dose volume increases. Glaxo aims

to have a PSR’s total compensation be approximately 75%

salary and 25% incentive compensation.4 However, the dollar

value of incentive-based compensation is uncapped. 

The process of providing information to physicians is

referred to within the pharmaceutical industry as “detailing,”

and PSRs have traditionally been known by the moniker “detail men” or “detailers.” Plaintiffs’ job functions during their

tenures at Glaxo varied little from those of their predecessors

of fifty or sixty years ago.5 Moreover, there is homogeneity

4

In 2004, Christopher received $72,576 gross pay, of which $29,993

was incentive compensation (41% of gross); in 2005, he received $67,243,

of which $21,231 was incentive (32% of gross); and in 2006, he received

$77,552, of which $28,249 was incentive (37% of gross). 

In 2004, Buchanan received $70,740 gross pay, of which $19,232 was

incentive compensation (27% of gross); in 2005, he received $74,358, of

which $27,743 was incentive (32% of gross); in 2006, he received

$84,932, of which $32,519 was incentive (38% of gross); and in 2007, he

received $75,776, of which $19,957 was incentive (26% of gross). 

5

See Thomas L. Hafemeister, et ano., Beware Those Bearing Gifts: Physician’s Fiduciary Duty to Avoid Pharmaceutical Marketing, 57 U. Kan.

L. Rev. 491, 493-94 (2009) (“Detailing is the term used to denote the practice of pharmaceutical representatives visiting the offices of physicians or

otherwise contacting physicians to promote their company’s drugs and/or

medical devices.”). The pharmaceutical-representative/detailist position

has deep roots in the industry, dating back until at least the 1930s. See

Lars Noah, Death of a Salesman: To What Extent Can the FDA Regulate

the Promotional Statements of Pharmaceutical Sales Representatives, 47

Food & Drug L.J. 309, 311 (1992) (“During the 1930s, . . . [m]arketing

efforts by salesmen therefore focused almost exclusively on retail pharmacies.”). Indeed, we trace the first mention of detail men in the federal case

reports to 1940. See United States v. Fifty-Nine Tubes, More or Less, of

Lutein Tablets, 32 F. Supp. 958, 960 (S.D.N.Y. 1940) (describing how

“detail men or salesmen” interacted with physicians); see also Motus v.

Pfizer, Inc., 358 F.3d 659, 661 (9th Cir. 2004) (referring to “Pfizer’s detail

men” providing drug information to a physician); N. Cal. Pharm. Ass’n v.

United States, 306 F.2d 379, 386 (9th Cir. 1962) (“ ‘Detail men,’ or local

sales representatives of the out-of-state manufacturers are constantly at

CHRISTOPHER v. SMITHKLINE BEECHAM 2339
within the industry—PSRs carry out essentially the same

business functions regardless of which drug manufacturers

they represent.6

The pharmaceutical industry self-regulates PSRs and their

contacts with physicians by way of a voluntary industry-wide

code of conduct—the Pharmaceutical Research and Manufacturers of America (PhRMA) Code. The PhRMA Code does

not speak of selling, but, rather, provides that “[i]nteractions

[with health care professionals] should be focused on informing [them] about products, providing scientific and educational information, and supporting medical research and

education.” The PhRMA Code refers to PSRs as “industry

representatives” and states that “[i]nformational presentations

and discussions by industry representatives speaking on

behalf of a company provide valuable scientific and educational benefits.” The PhRMA Code also regulates the provision of meals and gifts to physicians and professes an industry

commitment to independent medical decisionmaking. 

work in northern California acquainting physicians and pharmacists with

new drugs, stimulating interest generally in the firm’s products, and urging

physicians to prescribe, and pharmacists to order, the manufacturer’s

goods.”); Schering Corp. v. Sun Ray Drug Co., 320 F.2d 72, 74 (3d Cir.

1963) (explaining company’s advertising included “efforts on the part of

its detail men (who are salesmen)”); Hoffmann-La Roche, Inc. v. Schwegmann Bros. Giant Super Mkts., 122 F. Supp. 781, 783 (E.D. La. 1954)

(“[Detail men] regularly call upon physicians . . .”). 

6

See e.g., IMS Health, Inc. v. Mills, 616 F.3d 7, 14 (1st Cir. 2010)

(“Detailing is a massive and expensive undertaking for pharmaceutical

manufacturers, which spend billions of dollars a year to have some 90,000

pharmaceutical sales representatives make weekly or monthly one-on-one

visits to prescribers nationwide.”); Pfizer, Inc. v. Astra Pharm. Prods.,

Inc., 858 F. Supp. 1305, 1314 (S.D.N.Y. 1994) (“It is not disputed that the

parties’ marketing efforts are conducted in substantially similar ways

through (a) advertising in medical journals, (b) mailings sent to doctors,

and (c) the use of large forces of ‘detail men’ who solicit doctors at the

latter’s offices and discuss their products directly with the doctors.”). 

2340 CHRISTOPHER v. SMITHKLINE BEECHAM
II. Proceedings in the District Court

This litigation commenced in August 2008, when Plaintiffs

filed the Complaint challenging Glaxo’s practice of requiring

overtime work without paying additional compensation as a

violation of 29 U.S.C. §§ 207(a)(1), 216(b). The parties crossmoved for summary judgment, and Plaintiffs moved to certify

a conditional class. Glaxo contended that Plaintiffs were

exempt under the “outside salesman” provision in FLSA or,

alternatively, under the “administrative” exemption. 29

U.S.C. § 213(a)(1). 

In granting Glaxo’s motion for summary judgment, the district court addressed only the outside sales exemption and

held that PSRs “unmistakably fit within the terms and spirit

of the exemption.” Christopher v. SmithKlein Beecham Corp.,

No. 08 Civ. 1498 (FJM), 2009 WL 4051075, at *5 (D. Ariz.

Nov. 20, 2009). The court observed that PSRs “are not hourly

workers, but instead earn salaries well above minimum wage

—up to $100,000 a year,” and that they receive bonuses in

lieu of overtime as “an incentive to increase their efforts.” Id.

The district court continued, “A PSR’s ultimate goal is to

close an encounter with a physician by obtaining a nonbinding commitment from the physician to prescribe the

PSR’s assigned product. In this highly regulated industry, that

is the most a PSR can achieve.” Id.

Thereafter, Plaintiffs moved to alter or amend the judgment

based on the district court’s failure to consider an amicus brief

filed by the Secretary (Secretary) of the Department of Labor

(DOL) in a FLSA appeal then pending before the United

States Court of Appeals for the Second Circuit, In re Novartis

Wage & Hour Litig., 611 F.3d 141 (2d Cir. 2010). The district

court rejected Plaintiffs’ argument that the DOL brief was

entitled to deference under either Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),

or Auer v. Robbins, 519 U.S. 452 (1997), and noted that the

DOL’s brief recapitulated the points argued at summary judgCHRISTOPHER v. SMITHKLINE BEECHAM 2341
ment. Finding the DOL’s “current interpretation inconsistent

with the statutory language and its prior pronouncements,

[and] [ ] also def[ying] common sense,” the district court

denied the motion to amend the judgment. Plaintiffs appeal.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. 

We review a district court’s interpretation of the FLSA and

its grant of summary judgment de novo. Gieg v. DDR, Inc.,

407 F.3d 1038, 1044-45 (9th Cir. 2005); see also Dent v. Cox

Commc’ns Las Vegas, Inc., 502 F.3d 1141, 1143 (9th Cir.

2007). Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247 (1986).

DISCUSSION

I. The FLSA Outside Sales Exemption

The FLSA imposes minimum labor standards on employers

to promote “the health, efficiency, and general well-being of

workers.” 29 U.S.C. § 202(a); Nigg v. U.S. Postal Serv., 555

F.3d 781, 784 (9th Cir. 2009). The FLSA was “enacted

because Congress found that the existence ‘in industries

engaged in commerce or in the production of goods for commerce’ of labor conditions detrimental to maintaining minimum standards of living necessary for health, efficiency and

general well-being of workers perpetuates substandard conditions among workers, burdens commerce, constitutes an

unfair method of competition in commerce, leads to labor disputes, and interferes with the orderly and fair marketing of

goods.” Hale v. Arizona, 993 F.2d 1387, 1396 (9th Cir. 1993)

2342 CHRISTOPHER v. SMITHKLINE BEECHAM
(en banc) (quoting 29 U.S.C. § 202(a)) (emphasis added); see

also Nigg, 555 F.3d at 784. 

[1] To meet those goals and expand employment opportunities across the economy, the FLSA includes a baseline

“overtime payment requirement” that employers must pay

employees “a rate not less than one and one-half times the

regular rate at which he is employed” for hours worked in

excess of forty per week. 29 U.S.C. § 207(a)(1). There are

numerous exceptions to this general rule. See 29 U.S.C.

§ 213. These exemptions to the overtime-pay requirement

vary widely from “white-collar” executive, administrative,

and professional exemptions to those for babysitters. 29

U.S.C. § 213(a)(1), (15). Relevant here is one part of the

“white-collar” exemption for persons employed “in the capacity of outside salesman.” 29 U.S.C. § 213(a)(1); Vinole v.

Countrywide Home Loans, Inc., 571 F.3d 935, 946 (9th Cir.

2009). The white-collar exemption removes from the overtime pay requirement: 

any employee employed in a bona fide executive,

administrative, or professional capacity . . . or in the

capacity of outside salesman (as such terms are

defined and delimited from time to time by regulations of the Secretary [of Labor]). . . .

29 U.S.C. § 213(a)(1) (emphasis added). 

As the statute indicates, a proper interpretation of the FLSA

is necessarily guided by the regulations issued by the Secretary of Labor—“[t]he FLSA grants the Secretary broad

authority to ‘define and delimit’ the scope of the exemption

for executive, administrative, and professional employees.”

Auer, 519 U.S. at 456 (alterations and citation omitted). Congress did not define the term “outside salesman” or the other

white-collar exemptions in the FLSA. Rather, “[p]ursuant to

Congress’s specific grant of rulemaking authority, the [DOL]

has issued implementing regulations, at 29 C.F.R. Part 541

CHRISTOPHER v. SMITHKLINE BEECHAM 2343
[(Part 541)], defining the scope of the section 13(a)(1) exemptions.” See Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and

Computer Employees, 69 Fed. Reg. 22,122, 22,124 (Apr. 23,

2004). In 2004, the DOL’s Wage and Hour Division promulgated supplemental rules concerning the outside sales and

administrative exemptions (the 2004 Rule). Among other

things, the 2004 Rule explained that “the major substantive

provisions of the Part 541 regulations have remained virtually

unchanged for 50 years.” 69 Fed. Reg. at 22,124. 

[2] The Secretary defines an “outside salesman” as any

employee:

(1) Whose primary duty is: (i) making sales within

the meaning of section 3(k) of the Act; or (ii) obtaining orders or contracts for services or for the use of

facilities for which a consideration will be paid by

the client or customer; and

(2) Who is primarily and regularly engaged away

from the employer’s place or places of business in

performing such primary duty.

29 C.F.R. § 541.500(a). An employee’s “primary duty” is “the

principal, main, major, or most important duty that the

employee performs.” 29 C.F.R. § 541.700. The outside sales

regulation provides:

In determining the primary duty of an outside sales

employee, work performed incidental to and in conjunction with the employee’s own outside sales or

solicitations, including incidental deliveries and collections, shall be regarded as exempt outside sales

work. Other work that furthers the employee’s sales

efforts also shall be regarded as exempt work including, for example, writing sales reports, updating or

2344 CHRISTOPHER v. SMITHKLINE BEECHAM
revising the employee’s sales or display catalogue,

planning itineraries and attending sales conferences.

29 C.F.R. § 541.500(b). 

The Secretary’s outside sales regulation references Section

3(k) of the Act. 29 C.F.R. § 541.500(a). Section 3(k) provides

that “ ‘[s]ale’ or ‘sell’ includes any sale, exchange, contract to

sell, consignment for sale, shipment for sale, or other disposition.” 29 U.S.C. § 203(k). The Secretary’s regulations provide:

Sales within the meaning of section 3(k) of the Act

include the transfer of title to tangible property, and

in certain cases, of tangible and valuable evidences

of intangible property. Section 3(k) of the Act states

that “sale” or “sell” includes any sale, exchange,

contract to sell, consignment for sale, shipment for

sale, or other disposition.

29 C.F.R. § 541.501(b). 

In the regulations, the Secretary draws a distinction

between sales work and promoting: 

Promotion work is one type of activity often performed by persons who make sales, which may or

may not be exempt outside sales work, depending

upon the circumstances under which it is performed.

Promotional work that is actually performed incidental to and in conjunction with an employee’s own

outside sales or solicitations is exempt work. On the

other hand, promotional work that is incidental to

sales made, or to be made, by someone else is not

exempt outside sales work. 

29 C.F.R. § 541.503(a). To illustrate the concept of promoting

sales, as opposed to selling, the Secretary’s regulations proCHRISTOPHER v. SMITHKLINE BEECHAM 2345
vides two examples—a manufacturer’s representative and a

company representative who visits chain stores:

(b) A manufacturer’s representative, for example,

may perform various types of promotional activities

such as putting up displays and posters, removing

damaged or spoiled stock from the merchant’s

shelves or rearranging the merchandise. . . . Promotion activities directed toward consummation of the

employee’s own sales are exempt. Promotional

activities designed to stimulate sales that will be

made by someone else are not exempt outside sales

work. . . .

(c) Another example is a company representative

who visits chain stores, arranges the merchandise on

shelves, replenishes stock by replacing old with new

merchandise, sets up displays and consults with the

store manager when inventory runs low, but does not

obtain a commitment for additional purchases. The

arrangement of merchandise on the shelves or the

replenishing of stock is not exempt work unless it is

incidental to and in conjunction with the employee’s

own outside sales. Because the employee in this

instance does not consummate the sale nor direct

efforts toward the consummation of a sale, the work

is not exempt outside sales work.

29 C.F.R. § 541.503(b)-(c). 

In a FLSA overtime-wage case, the question of how an

employee spends his or her workday is one of fact, while the

question of whether his or her activities exclude him or her

from the overtime-pay requirement is one of law. See Icicle

Seafoods v. Worthington, 475 U.S. 709, 714 (1986); Bratt v.

Cnty. of Los Angeles, 912 F.2d 1066, 1068 (9th Cir. 1990).

Although the outside sales exemption is more than seven decades old, our encounters with the exemption are few and lim2346 CHRISTOPHER v. SMITHKLINE BEECHAM
ited to the class-certification context. See In re Wells Fargo

Home Mortg. Overtime Pay Litig., 571 F.3d 953 (9th Cir.

2009); Vinole, 571 F.3d at 939, 945. Thus, whether a PSR’s

job duties make him or her an outside salesperson is a question of first impression for our court. 

We construe the outside sales exemption consistent with

other Section 13(a) exemptions under the FLSA. The

employer always has the burden of showing the exemption

applies to its employee. Bratt, 912 F.2d at 1069; see also

Nigg, 555 F.3d at 788. The exemption can only apply to persons “plainly and unmistakably within [its] terms and spirit.”

Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960);

Klem v. Cnty. of Santa Clara, 208 F.3d 1085, 1089 (9th Cir.

2000). Because exemptions are “narrowly construed” against

the employer, to meet its burden, an employer must establish

that the employee satisfies each of the criteria set forth in the

Secretary of Labor’s regulations. See Bratt, 912 F.2d at 1069;

see also Wang v. Chinese Daily News, Inc., 623 F.3d 743, 751

(9th Cir. 2010). Reviewing a FLSA exemption is well understood to be “a fact-intensive” inquiry. Vinole, 571 F.3d at 945

(citation omitted).

II. Whether Deference to the Secretary’s Position is

Appropriate

[3] The Secretary’s appearance as amicus supporting

Plaintiffs requires us to determine what, if any, deference we

must accord to her view that PSRs do not meet the primary

duties test for the outside sales exemption. The Secretary also

advocated this construction of the regulations before the Second Circuit in Novartis. 611 F.3d at 149. Although the Novartis court held that Secretary’s interpretation was owed Auer

deference, 611 F.3d at 153, our review of the relevant authorities leads us to a different conclusion. We conclude that we

owe no deference to the Secretary’s current interpretation of

the regulations, and, in any event, we respectfully disagree

with that interpretation. 

CHRISTOPHER v. SMITHKLINE BEECHAM 2347
A. Administrative Deference in the FLSA

When a question arises as to the meaning of the FLSA or

the Secretary’s regulations, we apply traditional rules of construction and, where required, administrative deference. See,

e.g., Webster v. Pub. Sch. Emp. of Wash., Inc., 247 F.3d 910,

915 (9th Cir. 2001) (citing Auer, 519 U.S. at 457). Thus, if the

language of a statute or regulation is unambiguous, we apply

the terms as written. See Christensen v. Harris Cnty., 529

U.S. 576, 588 (2000) (“[D]eference is warranted only when

the language of the regulation is ambiguous.”); Chevron, 467

U.S. at 842-43 (“If the intent of Congress is clear, that is the

end of the matter; for the court, as well as the agency, must

give effect to the unambiguously expressed intent of Congress.”). By contrast, when Congress has not “directly spoken

to the precise question at issue,” Auer, 519 U.S. at 457, we

will defer to the Secretary’s regulation “so long as it is ‘based

on a permissible construction of the statute.’ ” Id. (citing

Chevron, 467 U.S. at 842-43). If the Secretary’s regulations

are themselves ambiguous, and the Secretary uses her rulemaking authority to provide clarity, we give controlling deference to the Secretary’s view unless it is “plainly erroneous or

inconsistent with the regulation.” Auer, 519 U.S. at 461 (citation and internal quotation mark omitted); see also Christensen, 529 U.S. at 586-87, 588 (“Auer deference is warranted

only when the language of the regulation is ambiguous.”); cf.

In re Farmers Ins. Exch., Claims Representatives’ Overtime

Pay Litig., 481 F.3d 1119, 1129 (9th Cir. 2007) (“We must

give deference to the DOL’s interpretation of its own regulations through, for example, Opinion Letters.”). Lastly, if the

Secretary interprets an unambiguous statute by way of an

opinion letter, enforcement guidelines, or the like, her opinion

is merely “entitled to respect” to the extent the interpretation

has the “power to persuade” the court. See Christensen, 529

U.S. at 587 (citing Skidmore v. Swift & Co., 323 U.S. 134,

140 (1944)). 

2348 CHRISTOPHER v. SMITHKLINE BEECHAM
B. In re Novartis Wage & Hour Litigation

In Novartis, the Second Circuit held that PSRs did not meet

the requirements of the outside sales exemption. As it has

done here, the DOL took the position that “when an employee

promotes to a physician a pharmaceutical that may thereafter

be purchased by a patient from a pharmacy . . . the employee

does not in any sense make the sale.” Novartis, 611 F.3d at

153. In reviewing the Secretary’s position, the Second Circuit

laid out the relevant statutory and regulatory history and

focused its attention on the Secretary’s regulations, and, in

particular, the Preamble in the 2004 Rule which “emphasized

that no one could be considered a salesman within these regulations unless he in some sense made a sale.” Id. at 152. The

Novartis court highlighted a series of comment letters sent to

the DOL by manufacturers’ associations and industry trade

groups that had requested “the Department [ ] eliminate the

emphasis upon an employee’s ‘own’ sales . . . because of

team selling, customer control of order processing, and

increasing computerization of sales and purchasing activities.

. . .” 69 Fed. Reg. at 22,162. The United States Chamber of

Commerce emphasized that “promotional activities, even

when they do not culminate in an individual sale, are nonetheless an integral part of the sales process.” Id. Based on these

concerns, the DOL made a “minor change” to “address commenter concerns that technological changes in how orders are

taken and processed should not preclude the exemption for

employees whose primary duty is making sales.” Id. The 2004

Rule continues: “[T]he Department does not intend to change

any of the essential elements required for the outside sales

exemption, including the requirement that the outside sales

employee’s primary duty must be to make sales or to obtain

orders or contracts for services. An employer cannot meet this

requirement unless it demonstrates objectively that the

employee, in some sense, has made sales.” Id.

The Novartis court also quoted the Preamble’s elaboration

of the primary-duty standard: “Employees have a primary

CHRISTOPHER v. SMITHKLINE BEECHAM 2349
duty of making sales if they ‘obtain a commitment to buy’

from the customer and are credited with the sale.’ ” 611 F.3d

at 152 (quoting 69 Fed. Reg. at 22,162) (emphasis in original). The Secretary’s interpretation is based on a 1949 DOL

interpretation, which provided: “In borderline cases the test is

whether the person is actually engaged in activities directed

toward the consummation of his own sales, at least to the

extent of obtaining a commitment to buy from the person to

whom he is selling. If his efforts are directed toward stimulating the sales of his company generally rather than the consummation of his own specific sales his activities are not

exempt.” 69 Fed. Reg. at 22,162-63 (citation omitted). 

The Second Circuit determined that the Secretary’s regulations “do far more than merely parrot the language of the

FLSA.” Novartis, 611 F.3d at 153. For that reason, “the Secretary’s interpretations of her regulations are [ ] entitled to

‘controlling’ deference unless those interpretations are

‘plainly erroneous or inconsistent with the regulation.’ ” Id.

(quoting Auer, 519 U.S. at 461 (internal quotation omitted)).

The Novartis court could find no inconsistencies or errors in

the Secretary’s amicus position. Id. The court stated it did not

believe the distribution practices of the drug company constituted an “other disposition,” as that term is used in the FLSA.

Rather, the court said that because “other disposition” followed a line of words which, apparently, emphasized “a sale”

being consummated, “other disposition” was not intended as

a “catch-all” category. Id. Ultimately, the Novartis court summarized its reasoning:

[W]here the employee promotes a pharmaceutical

product to a physician but can transfer to the physician nothing more than free samples and cannot lawfully transfer ownership of any quantity of the drug

in exchange for anything of value, cannot lawfully

take an order for its purchase, and cannot lawfully

even obtain from the physician a binding commitment to prescribe it, we conclude that it is not plainly

2350 CHRISTOPHER v. SMITHKLINE BEECHAM
erroneous to conclude that the employee has not in

any sense, within the meaning of the statute or the

regulations, made a sale. 

Id. at 154.

C. Deference Owed in this Case

[4] Our view of the level of deference we owe to the Secretary in this matter is best captured by the Supreme Court’s

instruction in Gonzales v. Oregon: “An agency does not

acquire special authority to interpret its own words when,

instead of using its expertise and experience to formulate a

regulation, it has elected merely to paraphrase the statutory

language.” 546 U.S. 243, 257 (2006); see also Chase Bank

USA, N.A. v. McCoy, 562 U.S. ___, (slip op. at 15) (Jan. 24,

2011) (“Accordingly, no deference was warranted to an

agency interpretation of what were, in fact, Congress’

words.”); N. Cal. River Watch v. Wilcox, 620 F.3d 1075, 1088

(9th Cir. 2010) (“Here, the three rules cited by the United

States essentially parrot the statutory language.”). The “parroting” with which the Gonzales Court took issue is present

in the Secretary’s interpretation of Section 3(k). 

According to the Secretary’s regulations, a salesman is

someone who either “mak[es] sales within the meaning of

section 3(k) of the Act” or someone who “obtain[s] orders or

contracts.” 29 C.F.R. 541.500(a)(1). Since there is no dispute

that PSRs do not obtain orders for anything, only the “sales”

element is relevant here. To define “sales within the meaning

of section 3(k),” we look to 29 C.F.R. § 541.501(b), which

provides that “[s]ales within the meaning of section 3(k) of

the Act include the transfer of title to tangible property, and

in certain cases, of tangible and valuable evidences of intangible property.” Section 3(k) of the Act states that “ ‘[s]ale”’ or

‘sell’ includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.” 29

U.S.C. § 203(k). Thus, the Secretary has given us two meanCHRISTOPHER v. SMITHKLINE BEECHAM 2351
ings with which to set the boundaries of the sales exemption.

First, in 29 C.F.R. § 541.501(b), the Secretary provides an

open-ended definition that sales, unsurprisingly, “include the

transfer of title to tangible property.” In the next sentence, the

Secretary cross-references back to the language of Section

3(k) of the Act—the very language purportedly being defined.

Accordingly, the Secretary’s regulations define “sale” or

“sell” by statutory renvoi—that is, a “sale” means a “sale.”

This clarifies nothing about the meaning of Section 3(k); it

merely incorporates the very undefined, very un-delimited

term the Secretary seeks to clarify. A definition dependent

almost entirely on Congress’s seventy-two-year old statutory

language is not an example of the DOL employing its “expertise” to elucidate meaning to which we owe Auer deference.

See N. Cal. River Watch, 620 F.3d at 1085-87.

In Gonzales v. Oregon, the Supreme Court confronted an

analogous situation when it rejected the Attorney General’s

regulatory attempt to frustrate the implementation of Oregon’s Death with Dignity Act. In that case, Oregon statutory

law exempted licensed physicians from liability when they

prescribed medication to hasten death for terminally ill individuals. 546 U.S. at 249-54. In 2001, shortly after a change

of presidential administration, the Attorney General promulgated a new interpretive rule that restricted the use of controlled substances in physician-assisted suicides. Id. at 254. In

defending that rule, the government contended in its appeal

that the judiciary was required to give “considerable deference” to the Attorney General’s interpretive rule as it was “an

elaboration of one of [his] own regulations.” Id. at 256. In

rejecting that contention, the Supreme Court drew meaningful

distinctions with its decision in Auer:

In Auer, the underlying regulations gave specificity

to a statutory scheme the Secretary was charged with

enforcing and reflected the considerable experience

and expertise the [DOL] had acquired over time.

2352 CHRISTOPHER v. SMITHKLINE BEECHAM
. . . Here, on the other hand, the underlying regulation does little more than restate the terms of the

statute itself. The language the Interpretive Rule

addresses comes from Congress, not the Attorney

General, and the near equivalence of the statute and

regulation belies the Government’s argument for

Auer deference.

Id. at 256-57 (emphasis added). 

[5] The failure to add specificity to the statutory scheme

that troubled the Gonzales Court, indeed the “parroting” of

statutory language, is present in the Secretary’s outside sales

regulations. Rather than setting forth a particular test for

“sale” or instructing employers to look for indicia of sales, the

Secretary’s regulations direct employers, employees, and this

court back to the language of the FLSA. Given the admonition in Gonzales, we are unable to accord Auer deference to

a regulation written in this manner. 

[6] Thus, when we look to the Secretary’s brief for her

application of the regulations, we see only a reinterpretation

of Section 3(k). Rather than applying the regulation to the

facts presented, the Secretary has used her appearance as

amicus to draft a new interpretation of the FLSA’s language.

Were we to accept the Secretary’s offer, and give controlling

deference even where there exists no meaningful regulatory

language to interpret, we would unduly expand Auer’s applicability to interpretations of statutes expressed for the first

time in case-by-case amicus filings. See N. Cal. River Watch,

620 F.3d at 1088 (“In this case, the amicus brief purports to

interpret statutory, not regulatory, language.”). In essence, we

would sanction bypassing of the Administrative Procedures

Act and notice-and-comment rulemaking. C.f. Christensen v.

Harris Cnty., 529 U.S. 576, 587 (2000) (“Here, however, we

confront an interpretation contained in an opinion letter, not

one arrived at after, for example, a formal adjudication or

notice-and-comment rulemaking.”). Accordingly, we hold

CHRISTOPHER v. SMITHKLINE BEECHAM 2353
that we need not give “controlling” deference to the Secretary’s interpretations in this matter.7

 Furthermore, even if

Auer applied, deference is not warranted because the Secretary’s position is both plainly erroneous and inconsistent with

her own regulations and practices, as demonstrated in the

analysis that follows. 

III. “Sales” and “Selling” in the Pharmaceutical 

Industry

Absent an agency-determined result, it is the province of

the court to construe the relevant statutes and regulations. N.

Cal. River Watch, 620 F.3d at 1088-89. As noted supra,

Plaintiffs argue that by not transferring any product to physicians, they are not selling pharmaceuticals, but only “promoting” them. Plaintiffs say this distinction is warranted in light

of the rule that the FLSA be “narrowly construed against . . .

employers.” Webster, 247 F.3d at 914. For its part, Glaxo

urges us to view “sale” in Section 3(k) in a commonsensical

fashion, while contending that the meaning of “sale” is permissive. Glaxo urges us to adopt the rationale that the phrase

“other disposition” in Section 3(k)’s definition of “sale” is a

broad catch-all category.8 This view was cited with approval

by the district court here, and is supported by the Secretary’s

usage, dating back to 1940, of the language that an employee

must “in some sense make a sale.” 69 Fed. Reg. at 22,162

(quoting “Executive, Administrative, Professional Outside

Salesman” Redefined, Wage and Hour Division, U.S. Dept. of

Labor, Report & Recommendations of the Presiding Officer

7As explained infra, we likewise find unpersuasive the Secretary’s interpretation of the FLSA provisions, thus vitiating any Skidmore deference.

See Section III. 

8

See Steven I. Locke, The Fair Labor Standards Acts Exemptions and

the Pharmaceuticals Industry: Are Sales Representatives Entitled to Overtime?, 13 Barry L. Rev. 1, 25 (2009) (“Applying these [common-usage]

definitions, it is logical to conclude that the term ‘other disposition,’ as it

is used to define a ‘sale’ under the Act, includes a physician’s decision to

write a prescription for a particular medication.”). 

2354 CHRISTOPHER v. SMITHKLINE BEECHAM
(Harold Stein) at Hearings Preliminary to Redefinition, at 46

(Oct. 10, 1940)) (emphasis added). 

[7] Plaintiffs’ contention that they do not “sell” to doctors

ignores the structure and realities of the heavily regulated

pharmaceutical industry. It is undisputed that federal law prohibits pharmaceutical manufacturers from directly selling prescription medications to patients. Plaintiffs suggest that

despite being hired for their sales experience, being trained in

sales methods, encouraging physicians to prescribe their products, and receiving commission-based compensation tied to

sales, their job cannot “in some sense” be called selling. This

view ignores the reality of the nature of the work of detailers,

as it has been carried out for decades. Plaintiffs’ argument

also fails to account for the fact that the relevant “purchasers”

in the pharmaceutical industry, and the appropriate foci of our

inquiry, are not the end-users of the drug but, rather, the prescribing physicians whom they importune frequently. See,

e.g., Baum v. AstraZeneca LP, 605 F. Supp. 2d 669, 678-79

(W.D. Pa. 2009) (discussing why the “professional paradigm”

places the physician as the relevant decision maker in the

health services industry), aff’d on other grounds, 372 Fed.

App’x 246 (3d Cir. 2010). Unlike conventional retail sales,

the patient is not at liberty to choose personally which prescription pharmaceutical he desires. As such, he cannot be

fairly characterized as the “buyer.” Instead, it is patient’s physician, who is vested with both a moral and legal duty to prescribe medication appropriately, who selects the medication

and is the appropriate focus of our “sell/buy” inquiry. In this

industry, the “sale” is the exchange of non-binding commitments between the PSR and physician at the end of a successful call. Through such commitments, the manufacturer will

provide an effective product and the doctor will appropriately

prescribe; for all practical purposes, this is a sale. Because

pharmaceutical manufacturers appreciate who the “real”

buyer is, they have structured their 90,000-person sales force

and their marketing tactics to accommodate this unique environment.

CHRISTOPHER v. SMITHKLINE BEECHAM 2355
[8] When a PSR visits a doctor, he or she attempts to

obtain the absolute maximum commitment from his or her

“buyer”—a non-binding commitment from the physician to

prescribe the PSR’s assigned product when medically appropriate. In most industries, there are no firm legal barriers that

prohibit the actual physical exchange of the goods offered for

sale. Because such barriers do exist in this industry, the fact

that commitments are non-binding is irrelevant; the record

reveals that binding or non-binding, a physician’s commitment to a PSR is nevertheless a meaningful exchange because

pharmaceutical manufacturers value these commitments

enough to reward a PSR with increased commissions when a

physician increases his or her use of a drug in the PSR’s bag.

See, e.g., Baum, 605 F. Supp. 2d at 681 (“This Court believes

that other courts, and perhaps regulatory agencies, underestimate the significance of this oral commitment from physicians. In part, this error emerges from a misunderstanding of

the ways in which human beings are socially and informally

motivated. Sometimes lawyers and judges forget that a person’s word means something; remarkably, many people do

not actually need a 400-page contract to bind themselves to

their word.”). 

Moreover, the industry has agreed upon and abides by the

PhRMA Code to regulate the marketing of medicine to

healthcare professionals—just as any consumer-products

maker might develop rules to limit the express warranties its

sales force might offer to a customer. Such industry practice

and prevailing customs should inform our disposition. Cf. Reiseck v. Universal Commc’ns of Miami, Inc., 591 F.3d 101,

106 (2d Cir. 2010) (in resolving whether advertising sales

director was an administrative or sales worker in the publishing industry “a careful consideration of [employer’s] business

model provides some clarity”).

Under Plaintiffs’ view, PSRs are not salespeople, despite

the fact that more than 90,000 pharmaceutical representatives

make daily calls on physicians for the purpose of driving

2356 CHRISTOPHER v. SMITHKLINE BEECHAM
greater sales. See IMS Health, 616 F.3d at 14. We cannot

square this view with Section 3(k)’s open-ended use of the

word “sale,” which includes “other disposition[s].” While we

recognize that the FLSA is to be narrowly construed in light

of its remedial nature, that general principle does not mean

that every word must be given a rigid, formalistic interpretation. For example, for over seventy years, the Secretary has

emphasized a sensible application of the exemptions; in the

Preamble to the 2004 Rule, the Secretary employs the openended concept that a salesman is someone who “in some

sense” sells. 69 Fed. Reg. at 22,162-63 (emphasis added). In

other words, while the Secretary asks us to narrowly interpret

this exemption, she herself acknowledges that technical considerations alone and changes in the way sales are made

should not be grounds for denying the exemption. See 69 Fed.

Reg. at 22,162. 

To further explain our common sense understanding of why

PSRs make sales, we find the paradigm “outside salesman”

case Jewel Tea Co. v. Williams—instructive. 118 F.2d 202

(10th Cir. 1941). The importance of Jewel Tea is illustrated

by the fact that both parties and the amicus offer it as favorable precedent for their conflicting positions. 

Jewel Tea involved a FLSA overtime-wage suit brought by

three employees of a tea, coffee, and sundry goods manufacturer and distributor. 118 F.2d at 203. The plaintiffs held the

position of “route salesmen” to “sell and distribute” products

to customers in their homes. Id. The area in which the company sold its goods was divided and “[e]ach salesman [was]

assigned an exclusive territory which he cover[ed].” Id. The

employees made no immediate deliveries but instead took

orders for future delivery, although they might advance an

item to a customer. Id. The company provided sales training

and sent a supervisor with a new hire on early sales calls

before permitting the employee to “go out on a route by himself.” Id. at 204. Further, employees were taught a “five-point

sale” method to employ when speaking with customers. Id. A

CHRISTOPHER v. SMITHKLINE BEECHAM 2357
certain degree of knowledge about the products and potential

customers was also required—“[t]he salesman must know

recipes for the preparation of the Company’s products . . .

[and] must learn the general requirements of each family, in

order to avoid over-stocking his customer and in order to

anticipate the family’s needs.” Id. After working in the field

during the day, employees completed some clerical tasks at

night. Id. at 205. Finally, employees were paid a base salary

plus a commission if their collections were in excess of a sum

certain. Id. 

The Jewel Tea plaintiffs brought suit to collect unpaid

overtime, asserting they did not fall within the “outside sales”

exemption, primarily employing the argument that they were

“delivery men.” Id. at 208. In its decision denying plaintiffs

overtime pay, the Tenth Circuit penned the oft-quoted justification for the outside sales exemption:

The reasons for excluding an outside salesman are

fairly apparent. Such salesman, to a great extent,

works individually. There are no restrictions respecting the time he shall work and he can earn as much

or as little, within the range of his ability, as his

ambition dictates. In lieu of overtime, he ordinarily

receives commissions as extra compensation. He

works away from his employer’s place of business,

is not subject to the personal supervision of his

employer, and his employer has no way of knowing

the number of hours he works per day. To apply

hourly standards primarily devised for an employee

on a fixed hourly wage is incompatible with the individual character of the work of an outside salesman.

Id. at 207-08. 

[9] Reviewing the undisputed facts here, we consider the

rationale for applying the outside sales exemption to PSRs to

be as “apparent” as it was in Jewel Tea. Of course, this case

2358 CHRISTOPHER v. SMITHKLINE BEECHAM
does not involve door-to-door consumer-product sales. But,

the FLSA is not an industry-specific statute. As the Second

Circuit recognized in Reiseck, not all FLSA claims will

involve the “archetypal businesses envisaged by the FLSA,”

591 F.3d at 106. Even though there are differences, it is notable that the salesmen in Jewel Tea and Plaintiffs here each (1)

worked in assigned territories, (2) did not make immediate

deliveries, (3) were required to analyze client backgrounds,

(4) received product training, (5) employed a pre-planned routine for client interaction, (6) were accompanied by supervisors for training, (7) were later subject to minimal supervisor

oversight, (8) completed clerical activities at the end of the

day, and (9) had a dual salary and commission-based compensation plan tied to their performance. Even though PSRs lack

some hallmarks of the classic salesman, the great bulk of their

activities are the same, as is the overarching purpose of

obtaining a commitment to purchase (prescribe) something. 

[10] The primary duty of a PSR is not promoting Glaxo’s

products in general or schooling physicians in drug development. These are but preliminary steps toward the end goal of

causing a particular doctor to commit to prescribing more of

the particular drugs in the PSR’s drug bag. Without this commitment and the concomitant increase in prescriptions, or

drug volume, or market share—i.e. without more sales—the

PSR would not receive his or her commission salary and

could soon find himself or herself unemployed. While not all

steps in the PSR’s daily activities constitute “selling,” that

fact does not render the totality of those activities non-exempt

promotion; “work performed incidental to and in conjunction

with the employee’s own outside sales or solicitations . . .

shall be regarded as exempt outside sales work . . . [and] . . .

other work that furthers the employee’s sales efforts also shall

be regarded as exempt work.” 29 C.F.R. § 541.500(b).

The Secretary’s distinction between selling and promoting

is only meaningful if the employee does not engage in any

activities that constitute “selling” under the Act. This much is

CHRISTOPHER v. SMITHKLINE BEECHAM 2359
seen from the plain language of the regulations, which gives

the example of promotional work as “a company representative who visits chain stores, arranges the merchandise on

shelves, replenishes stock by replacing old with new merchandise, sets up displays and consults with the store manager

when inventory runs low, but does not obtain a commitment

for additional purchases.” 29 C.F.R. § 541.503(c) (emphasis

added). PSRs do far more than collect general data or provide

consultations; indeed they ask for, and sometimes obtain, a

commitment by the doctor to prescribe Glaxo drugs, and

whether the doctor keeps that commitment is verified and

traced using aggregated pharmacy data Glaxo collects. See

IMS Health, 550 F.3d at 44-47 (“A valuable tool in this

endeavor, available through the omnipresence of computerized technology, is knowledge of each individual physician’s

prescribing history.”).

In Reisick, the Second Circuit highlighted an important distinction between selling and promoting, noting that the latter

is directed to the public at large, as opposed to a particular client:

Consider a clothing store. The individual who assists

customers in finding their size of clothing or who

completes the transaction at the cash register is a

salesperson under the FLSA, while the individual

who designs advertisements for the store or decides

when to reduce prices to attract customers is an

administrative employee for the purposes of the

FLSA.

Reiseck, 591 F.3d at 107. At Glaxo, Plaintiffs had no interest

in “generally” promoting sales by the company or improving

sales across the board. Rather, Plaintiffs directed their sales

efforts only towards certain products, only to a discrete group

of physicians, and only within a defined geographic area. Targeting physicians is not based on mass appeals or general

advertisements, but is the result of a personalized review of

2360 CHRISTOPHER v. SMITHKLINE BEECHAM
each physician’s prescribing habits and history. The process,

like any sales process, is tailored to the customer’s preferences. 

[11] We also find that the Secretary’s acquiescence in the

sales practices of the drug industry for over seventy years further buttresses our decision. The outside sales exemption has

existed since 1938. Detail men have practiced their craft over

that same period. Generally, they have been considered salespeople.9

 Until the Secretary’s appearance in Novartis, the

DOL did not challenge the conventional wisdom that detailing

is the functional equivalent of selling pharmaceutical products. Indeed, the DOL has recognized as much in its Dictionary of Occupation Titles, which provides the following

definition for pharmaceutical detailers: 

9

See N. Cal. Pharm., 306 F.2d at 386 (9th Cir. 1962) (“ ‘Detail men,’

or local sales representatives. . .”); see also IMS Health, 550 F.3d at 54

(“In the service of maximizing drug sales, detailers use prescribing histories as a means of targeting potential customers more precisely and as a

tool for tipping the balance of bargaining power in their favor. As such,

detailing affects physician behavior and increases the likelihood that physicians will prescribe the detailers’ (more expensive) drugs.” (emphasis

added)); Williams v. Bristol-Myers Squibb, Co., 85 F.3d 270, 273 (7th Cir.

1996) (“Federal law requires a maker of prescription drugs to have a samples control program designed to prevent its salesmen, who frequently

give free samples to the physicians they call on, from distributing prescription drugs outside authorized channels.”); Sun Ray Drug, 320 F.2d at 74

(“efforts on the part of its detail men (who are salesmen)”); Beale v. Biomet, Inc., 492 F. Supp. 2d 1360, 1377 (S.D. Fla. 2007) (“In each of these

cases, the courts found that the drugs were overpromoted by salesmen

known as ‘detail men,’ who visited physicians’ offices and encouraged

physicians to prescribe the drug.”); Skill v. Martinez, 91 F.R.D. 498, 508

(D.N.J. 1981) (“comments by drug “‘detail men’ (drug salesmen who visit

physicians)”); Smith, Kline & French Lab. v. State Tax Comm’n, 403 P.2d

375, 378 (Or. 1965) (“By soliciting the stocking of plaintiff’s products by

druggists and the prescription of those drugs by physicians, plaintiff ’s

detail men perform the same sales function in plaintiff’s field that salesmen soliciting actual orders from the ultimate user perform in other businesses.”). 

CHRISTOPHER v. SMITHKLINE BEECHAM 2361
Promotes use of and sells ethical drugs and other

pharmaceutical products to physicians, [dentists],

hospitals, and retail and wholesale drug establishments, utilizing knowledge of medical practices,

drugs, and medicines: Calls on customers, informs

customer of new drugs, and explains characteristics

and clinical studies conducted with drug. Discusses

dosage, use, and effect of new drugs and medicinal

preparations. Gives samples of new drugs to customer. Promotes and sells other drugs and medicines

manufactured by company. May sell and take orders

for pharmaceutical supply items from persons contacted.

D.O.L. Dictionary of Occupational Titles § 262.157-010 (4th

ed. 1991) (emphases added). Likewise, although it emerged in

a different context, we find Judge Posner’s observation in Yi

v. Sterling Collison Centers, Inc., 480 F.3d 505, 510-11 (7th

Cir. 2007), informative—while it is “possible for an entire

industry to be in violation of the [FSLA] for a long time without the Labor Department noticing[, the] more plausible

hypothesis is that the . . . industry has been left alone”

because DOL believed its practices were lawful.

[12] In view of many similarities between PSRs and salespeople in other fields, pharmaceutical industry norms, and the

acquiescence of the Secretary over the last seventy-plus years,

we cannot accord even minimal Skidmore deference to the

position expressed in the amicus brief. Under Skidmore, “[t]he

fair measure of deference to an agency administering its own

statute has been understood to vary with circumstances, and

courts have looked to the degree of the agency’s care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency’s position.” United States v. Mead

Corp., 533 U.S. 218, 228 (2001) (internal citations omitted);

see also League of Wilderness Defenders v. Forsgren, 309

F.3d 1181, 1189 (9th Cir. 2002) (quoting Skidmore, 323 U.S.

at 140) (internal quotation marks omitted). Many, if not all,

2362 CHRISTOPHER v. SMITHKLINE BEECHAM
of these hallmarks of “respectful” deference are absent here.

The about-face regulation, expressed only in ad hoc amicus

filings, is not enough to overcome decades of DOL nonfeasance and the consistent message to employers that a salesman is someone who “in some sense” sells. Moreover, we are

unable to accept an argument that fails to account for industry

customs and emphasizes formalism over practicality, in particular the argument that “obtaining a commitment to buy” is

the sine qua non of the exemption. Under the Secretary’s

view, “sale” means unequivocally the final execution of a

legally binding contract for the exchange of a discrete good.

In addition to the point that such stringent wording is not

found in Section 3(k), or plausibly implied from phrases like

“other disposition,” the Secretary’s approach transforms what

since the time of Jewel Tea has been recognized as a multifactor review of an employee’s functions into a single, stagnant inquiry. 

Telephones, television, shopping malls, the Internet and

general societal progress have largely relegated the professional pitchman embodied in Jewel Tea to the history books.

But selling continues, and, as in prior eras, a salesperson

learns the nuances of a product and those of his or her potential clientele, tailors a scripted message based on intuition

about the customer, asks for the customer to consider her need

for the product, and then receives a commission when the customer’s positive impression ultimately results in a purchase.

[13] For the past seventy-plus years, selling in the pharmaceutical industry has followed this process. PSRs are driven

by their own ambition and rewarded with commissions when

their efforts generate new sales. They receive their commissions in lieu of overtime and enjoy a largely autonomous

work-life outside of an office. The pharmaceutical industry’s

representatives—detail men and women—share many more

similarities than differences with their colleagues in other

sales fields, and we hold that they are exempt from the FLSA

overtime-pay requirement.

CHRISTOPHER v. SMITHKLINE BEECHAM 2363
CONCLUSION 

For the foregoing reasons, we AFFIRM the district court’s

summary judgment for Defendant-Appellee SmithKline Beecham Corporation. 

AFFIRMED. 

2364 CHRISTOPHER v. SMITHKLINE BEECHAM