Wong v. Novartis Pharmaceuticals Corporation

Filing 1

COMPLAINT (Collective Action) against Novartis Pharmaceuticals Corporation. Filing fee $ 350.00 receipt number 113C-3810858, filed by Kenneth Wong. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s))(Morgado, Dale)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION

KENNETH WONG, individually,
and on behalf of all others similarly
situated who consent to their inclusion;

CASE NO. 0:11-cv-61269

Plaintiffs,
COLLECTIVE ACTION
REPRESENTATION

v.

NOVARTIS PHARMACEUTICALS
CORPORATION,
Defendant.

DATE: June 5, 2011

COLLECTIVE ACTION COMPLAINT FOR VIOLATION OF THE FLSA
AND DEMAND FOR JURY TRIAL
INTRODUCTION
1.

The Fair Labor Standards Act is our nation’s foremost wage law. The overtime

requirements of the Fair Labor Standards Act (“FLSA”) were meant to apply financial
pressure to spread employment to avoid the extra wage and to assure workers
additional pay to compensate them for the burden of a workweek beyond the hours
fixed in the act. In re Novartis Wage & Hour Litig., 611 F.3d 141, 150 (2d Cir. N.Y. 2010). It
requires minimum wage and overtime pay for certain non-exempt employees. 29 USC
Sec. 213

2.

On July 6, 2010, the Second Circuit of the United States told Defendant,

Novartis, that its Sales Representatives (referred here as “Reps”) that worked various
times between March 23, 2000 and April 7, 2007 are not exempt from overtime pay
under the FLSA. Specifically ruling that Novartis’ arguments that Reps fall under the
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administrative and outside salesman exemption have “no merit.” In re Novartis Wage &
Hour Litig., 611 F.3d 141, 157 (2d Cir. N.Y. 2010)

3.

Plaintiff, KENNETH WONG (referred here as “Wong” or “Plaintiff”), worked as a

Sales Representative / Sales Consultant from November 28, 2007 until December 31,
2010 (his technical termination day, however, is February 7, 2011).
4.

He, like his fellow Reps at Novartis and members of this Class, in the past and

still to this day:
a. had no role in planning Novartis’ marketing strategy
b. had no role in formulating the core messages he was to deliver to
physicians;
c. was required to visit a given physician a certain number of times per
trimester as established by Novartis;
d. was required to promote a given drug(s) a certain number of times per
trimester as established by Novartis;
e. was not allowed to deviate from the promotional core message;
f. was not supposed to answer any questions for which have not been
scripted;
5.

Further, Wong, like his fellow Reps at Novartis and members of the Class, in

the past and still to this day:
a. are required to provide information to doctors in hope that they would
prescribe their patients Novartis drugs; yet they
b. do not obtain orders from drugs with the doctors or anyone or any entity;
c. do not form contracts for drugs with the doctors or anyone or any entity;
d. do not engage in any type of sale with the doctors or anyone or any
entity for Novartis drugs; and

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e. do not transfer title or ownership of Novartis drugs for anything in value.
6.

Accordingly, Wong, individually, and on behalf of all others similarly situated

who consent to their inclusion in this collective action, sue Defendant, NOVARTIS
CORPORATION, (referred to herein as “Novartis”), for violations of the Fair Labor
Standards Act for: (1) failing to pay the Plaintiff (and others similarly situated) overtime
compensation and (2) failing to maintain and preserve accurate and true records of all
hours worked.
7.

As explained by the Second Circuit in 2010 and through this Complaint, and

under applicable wage law, the Defendant’s employees given the title of “Sales
Representative” (or certain related titles) are entitled to overtime compensation but were
not paid overtime during the time period proposed in this Collective Action.
8.

Said another way, Novartis improperly classified Reps as exempt employees in

an attempt to circumvent paying overtime, however, their work duties dictate that they
should have been classified, and compensated, as non-exempt employees.
CLASS DEFINITION AND RELIEF SOUGHT
9.

This collective action is to recover from Novartis overtime compensation,

liquidated damages, prejudgment interest, and the costs and reasonable attorney’s fees
under 29 U.S.C. §216(b) on behalf of the Plaintiffs and similarly situated persons
composed of:
All Novartis Sales Representatives, Sales Consultants, Senior Sales
Consultants, and/or Executive Sales Consultants who worked for the
company as employees in the past three years preceding this lawsuit (i.e.
June 5, 2008) to the day of trial, and elect to opt-in to this action pursuant
to FLSA, 29 U.S.C. § 216(b) and who worked in excess of forty (40) hours
during one or more work weeks but were not paid overtime compensation
for such time.

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JURISDICTION AND VENUE
10.

This Court has original subject matter jurisdiction over this action pursuant to 28

U.S.C. §1331, because this action involves a federal question under the Fair Labor
Standards Act, 29 U.S.C., Sections 201-219, inclusive.
11.

This Court has personal jurisdiction over this action because the Defendant is

engaged in business within the state of Florida.
12.

Venue is proper in the Southern District of Florida pursuant to 28 U.S.C. 1391(b)

because the acts complained of herein took place in this District and Wong worked in
the state of Florida for the Defendant.
THE PARTIES
KENNETH WONG
13.

At all times relevant to this action, Representative Plaintiff, Kenneth Wong,

resided in Broward County, Florida.
14.

At all times relevant to this action, Wong worked for NOVARTIS throughout

Florida.
15.

At all times relevant to this action, Wong, and all other members of the proposed

FLSA collective action, were employees of NOVARTIS within the meaning of 29 U.S.C.
§ 203(e)(1).
16.

Wong worked as a Sales Representative for Novartis from November 28, 2007

until December 31, 2010 (his technical termination day, however, is February 7, 2011).
17.

For purposes of the collective action, Wong consents in writing to be a party to

this action pursuant to 29 U.S.C. § 216(b).
18.

At all times relevant to this action, NOVARTIS employed Wong, and all other

members of the proposed FLSA collective action, within the meaning of 29 U.S.C. §
203(g).

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NOVARTIS PHARMACEUTICALS CORPORATION
19.

Defendant, Novartis Pharmaceuticals Corporation, is a for-profit corporation

organized and existing under the laws of Delaware, with its principle place of business
at 59 Route 10, East Hanover, New Jersey. Its registered agent for service in Florida is
Corporation Service Company, 1201 Hays Street, Tallahassee, Florida 32301.
20.

Novartis employs hundreds of Reps in the state of Florida and thousands

throughout the United States.
21.

Novartis conducts substantial business in the state of Florida and throughout the

country subjecting it to enterprise coverage under the FLSA.
22.

Novartis had more than $500,000 in revenues for the year of 2007, 2008, 2009,

and 2010.
23.

At all relevant times, Novartis has been and continues to be an employer

engaged in interstate commerce and/or the production of goods for commerce, within
the meaning of FLSA 29 U.S.C. §§ 206(a) and 207(a).
24.

Novartis is subject to the FLSA.
GENERAL ALLEGATIONS

25.

Plaintiff and members of the Class were/are forced to work overtime hours, every

week.
26.

Plaintiff and all other members of the proposed collective action, were employees

of Novartis within the meaning of 29 U.S.C. § 203(e)(1).
27.

Plaintiff and members of the Class were misclassified by Novartis as exempt

employees under the title “Sales Representative.”
28.

Reps were paid on a salary and commission basis, irrespective of the hours

actually worked.

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DUTIES DICTATE THAT NO EXEMPTION APPLIES HERE
29.

FLSA provides that, with certain exceptions, employers must pay employees

overtime of at least one and one-half times their regular rate of pay for any hours over
forty worked in a week. 29 U.S.C. S 207(a)(1).
30.

The Act exempts certain employees from the overtime requirements but it is the

employees duties, not job title, that dictate whether he or she is entitled to an
exemption.
31.

However, an "employer who claims an exemption from the FLSA has the burden

of showing that the exemption applies." Donovan v. Nekton, Inc., 703 F.2d 1148, 1151 (9th Cir.
1983).

32.

Although the FLSA provides for certain exemptions to the mandates of paying

overtime compensation, no exemption applies in the instant matter. In re Novartis Wage &
Hour Litig., 611 F.3d 141, 150 (2d Cir. N.Y. 2010)

33.

Unless proven to be exempt from the protection of overtime laws, all employees

are entitled to premium overtime pay for work in excess of forty (40) hours per week.
34.

Due to the nature of the job responsibilities and requirements set forth by the

Defendant, Plaintiff and members of the Class were, and continue to be, required to
work more than forty (40) hours a week during the course of their employment with
Novartis.
WHITE COLLAR EXEMPTIONS DO NOT APPLY
35. Wong, like his fellow Reps at Novartis and members of this Class, in the past and
still to this day:
a. had no role in planning Novartis’ marketing strategy
b. had no role in formulating the core messages he was to deliver to
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physicians;
c. was required to visit a given physician a certain number of times per
trimester as established by Novartis;
d. was required to promote a given drug(s) a certain number of times per
trimester as established by Novartis;
e. was not allowed to deviate from the promotional core message;
f. was not supposed to answer any questions for which have not been
scripted.
36.

Despite, what any purported job description for an Novartis Rep might say,

Plaintiff, and members of the Class had perform low-level, discretionless marking work,
strictly controlled by Novartis.
37.

Wong, and members of the Class did not have the authority to hire or fire

employees, and they did not have the authority to independently make business
decisions.
38.

Reps did not exercise the requisite discretion, management, and independent

judgment with respect to matters of significance to be considered exempt under the
FLSA’s white collar exemptions.

OUTSIDE SALES EXEMPTIONS DO NOT APPLY
39. Further, Wong, like his fellow Reps at Novartis and members of the Class, in the
past and still to this day:
a. are required to provide information to doctors in hope that they would
prescribe their patients Novartis drugs; yet they

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b. do not obtain orders from drugs with the doctors or anyone or any entity;
c. do not form contracts for drugs with the doctors or anyone or any entity;
d. do not engage in any type of sale with the doctors or anyone or any
entity for Novartis drugs; and
e. do not transfer title or ownership of Novartis drugs for anything in value.
40.

Wong and members of the Class did not transfer title or ownership of Novartis

drugs for anything in value so they cannot be exempt under the Outside Salesman
exemption.
ACTIONS WERE WILLFUL
41.

The company took these actions willfully, because as early as 2006 the

Defendant had been put on notice of the unlawful classification of sales representative
by the previous California and New York lawsuits over the same issues facing this
Court, yet the company failed to correct its actions.
42.

However, to make matters worse, after the Second Circuit had ruled their claims

for exemptions had no merit and the Supreme Court denied their writ of certiorari, the
Company has still not properly paid or classified its Sales Reps.
43.

Plaintiff alleges on behalf of the members of the Class that Novartis’ failure to

pay overtime was knowing and willful. Accordingly, Plaintiff and the Class seek and are
entitled to recover all overtime pay due from overtime hours worked for which
compensation was not paid, liquidated damages, prejudgment interest, and attorneys’
fees under the FLSA’s three year statute of limitations.

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HOURS NOT PAID FOR OVERTIME AND AVAILABLE RECORDS
44.

Evidence reflecting the precise number of overtime hours worked by Plaintiff and

every other member of the Class, as well as the applicable compensation rates, is in the
possession of Novartis.
45.

Wong’s records and projections estimates he was not paid for more than 3000

hours of overtime.
46.

However, and to the extent records are unavailable, Plaintiff and members of the

Class may establish the hours they worked solely by their testimony and the burden of
overcoming such testimony shifts to the employer. Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680 (1946).

WORKING LUNCHES
47.

Plaintiff and the Class were/are also not paid during working lunches, and even

when Plaintiffs did/do not take a lunch.
48.

Because the Plaintiff and Class members would often work during lunch, or be

engaged in a working lunch (where they would eat while working) both off and on the
clock, and not get paid for all of their time, they are entitled to compensation for this
time.
49.

The regulations provide that if the employee is required to perform any duties--

whether active or inactive--while eating, the meal period is not bona fide and the time
spent in eating is compensable. See 29 CFR 785.19 and Kohlheim v. Glynn County, 117 Lab.
Cas. (CCH) 35413, 915 F. 2d 1473, 29 Wage & Hour Cas. (BNA) 1673 (11th Cir. 1990).

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FAILURE TO MAINTAIN TRUE & ACCURATE RECORDS OF HOURS WORKED
50.

All employers subject to the Fair Labor Standards Act must maintain and

preserve certain records describing the wages, hours and working conditions of their
employees.
51.

With respect to an employee subject to the minimum wage provisions the

following records must be kept:
a. Personal information, including employee's name, home address,
occupation, sex, and birth date if under 19 years of age;
b. Hour and day when workweek begins;
c. Regular hourly pay rate for any week when overtime is worked;
d. Total hours worked each workday and each workweek; Total daily or
weekly straight-time earnings;
e. Total overtime pay for the workweek;
f. Deductions from or additions to wages;
g. Total wages paid each pay period;
h. Date of payment and pay period covered
52.

Failure to comply with the recordkeeping requirements is a violation of the FLSA

for which criminal or civil sanctions may be imposed, whether or not other statutory
violations exist. See 29 U.S.C. § 215(a)(5). See Dunlop v. Gray-Goto, Inc., 528 F.2d 792 (10th Cir.
1976).

53.

Accurate records are not only required for regulatory purposes, they are critical to

an employer's defense of claims that it violated the Act.

An employer that fails to

maintain the required records cannot avoid liability in a wage-hour case through
argument that there is insufficient evidence of the claimed hours worked. See Wirtz v.

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First State Abstract Ins. Co., 362 F.2d 83 (8th Cir. 1966); Boekemeier v. Fourth
Universalist Soc'y, 86 F. Supp. 2d 280 (S.D.N.Y. 2000).
54.

An employer's failure to maintain records may create a presumption in the

aggrieved employee's favor. See Myers v. The Copper Cellar Corp., 192 F.3d 546, 551
n.9 (7th Cir. 1999) , citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S. Ct.
1187, 90 L. Ed. 1515 (1946).
55.

Novartis has failed to accurately record, report, credit and/or compensate its

employees, including Plaintiff and Class members, time records.
56.

Novartis has failed to make, keep and preserve records, with respect to each of

its’ employees, sufficient to determine the wages, hours and other conditions and
practices of employment in violation of 29 CFR 516.2 and 29 U.S.C. §§ 211, 216 and
related laws.
COLLECTIVE ACTION ALLEGATIONS
57.

Plaintiff brings this action on behalf of the Class, as a collective action pursuant

to the Fair Labor Standards Act § 216(b).
58.

The Southern District of New York said in Young v. Cooper Cameron Corp in

2005: “The requirements of Fed. R. Civ. P. 23 do not apply to the approval of a
collective action and thus no showing of numerosity, typicality, commonality and
representativeness need be made.” Young v. Cooper Cameron Corp., 229 F.R.D. 50, 54 (S.D.N.Y.
2005)

59.

Still, despite the Young Court’s ruling, the members of the Class are so

numerous that joinder of all members is impracticable. While the exact number of the
members of the Class is unknown to the Plaintiff at this time, and can only be

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ascertained through appropriate discovery, the Plaintiff believes there are at a minimum,
hundreds of individuals in the defined class, if not thousands.
60.

Plaintiff will fairly and adequately protect the interests of the Class and has

retained counsel that is experienced and competent in class/collective actions and
employment litigation. Plaintiff has no interest that is contrary to, or in conflict with,
members of the Class.
61.

A collective action suit, such as the instant one, is superior to other available

means for fair and efficient adjudication of this lawsuit.

The damages suffered by

individual members of the Class may be relatively small when compared to the expense
and burden of litigation, making it virtually impossible for members of the Class to
individually seek redress for the wrongs done to them.
62.

A collection action is, therefore, superior to other available methods for the fair

and efficient adjudication of the controversy. Absent these actions, the members of the
Class likely will not obtain redress of their injuries, and Novartis will retain the proceeds
of their violations of the FLSA.
63.

Furthermore, even if any member of the Class could afford individual litigation

against the Company, it would be unduly burdensome to the judicial system.

The

instant methodology, when compared to voluminous individual actions, has fewer
management difficulties and provides the benefits of unitary adjudication, economies of
scale, and comprehensive supervision by a single court. Concentrating this litigation in
one forum will promote judicial economy and parity among the claims of individual
members of the Class, and provide for judicial consistency.

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64.

There is a well-defined community of interest in the questions of law and fact

affecting the Class as a whole. The question of law and fact common to each of the
Class predominate over any questions affecting solely individual members of the action.
Among common questions of law and fact are:
a. Whether Novartis employed members of the Class within the meaning of
the applicable provisions of the FLSA;
b. Whether Reps were uniformly and unlawfully classified by Novartis as
exempt from overtime compensation;
c. Whether Novartis failed to pay Plaintiff and the Class all overtime
compensation due to them by virtue of their uniform designation as
exempt;
d. Whether Novartis and members of the Class were expected to, and/or
mandated to regularly work hours in excess of forty (40) per week;
e. Whether Novartis failed to maintain and preserve accurate and true
records of all hours worked and wages earned by the Class;
f. Whether Plaintiff and the Class have sustained damages, and if so, what
is the proper measure of damages.
65.

Plaintiff knows of no difficulty that will be encountered in the management of this

litigation that would preclude its continued maintenance.
66.

Pursuant to 20 U.S.C. § 207, Plaintiff seeks to prosecute the FLSA claims as a

collective action on behalf of:
All Novartis Sales Representatives, Sales Consultants, Senior Sales
Consultants, and/or Executive Sales Consultants who worked for the
company as employees in the past three years preceding this lawsuit (i.e.
June 5, 2008) to the day of trial, and elect to opt-in to this action pursuant
to FLSA, 29 U.S.C. § 216(b) and who worked in excess of forty (40) hours

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during one or more work weeks but were not paid overtime compensation
for such time.
67.

Notice of the pendency and any resolution of this action can be provided to

Collective Action Members by mail, print, and/or internet publication.
COUNT I – OVERTIME DUE UNDER THE FLSA
68.

Paragraphs one (1) through sixty-seven (67) are realleged as if fully set forth

herein.
69.

At all relevant times, Novartis employed, and/or continues to employ, Plaintiff,

and each member of the Class, within the meaning of the FLSA.
70.

As stated herein, Plaintiff and others similarly situated were improperly classified

by Novartis as exempt; however, their work duties dictate they should have been
classified and compensated as non-exempt employees, regardless of their title of “Sales
Representative”.
71.

Novartis has a policy and practice of refusing to pay overtime compensated to its

Reps for the hours worked in excess of forty (40) hours per week.
72.

Novartis willfully classified Plaintiff and all other members of the Class as exempt

in efforts to circumvent paying earned overtime, however, under applicable employment
law, an employee is classified as exempt versus non-exempt according to their job
duties, not their job title. Non-exempt employees are entitled to overtime compensation
regardless of whether they have an exempt title, if their duties do not reflect “exempt job
duties” under the FLSA.
73.

Novartis’ failure to pay Plaintiff and all other members of the Class overtime

compensation at a rate not less than one and one-half times the rate at which they are
employed for work performed beyond the forty (40) hour workweek, is a violation of the
FLSA, in particular 29 U.S.C. §§ 206 and 207.

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74.

The foregoing conduct, as alleged, constitutes a willful violation of the FLSA

within the meaning of 29 U.S.C. § 255(a).
75.

Due to Novartis’ FLSA violations, Plaintiff alleges on behalf of the members of

the Class that they have suffered damages and are entitled to recover from Novartis the
unpaid overtime compensation, and an additional amount equal as liquidated damages,
prejudgment interest, reasonable attorneys’ fees, and costs and disbursements of this
action, pursuant to 29 U.S.C. §216(b).
PRAYER FOR RELIEF
76.

WHEREFORE Plaintiff prays for:
a. An order designating this action as a collective action and issuance of notice
pursuant to 29 U.S.C. § 216(b) to all similarly situated individuals with
instructions to permit them to assert timely FLSA claims in this action by filing
individual Consents to Sue pursuant to §216(b) and that notice be sent to all
past and present employees of Novartis at any time during the three year
period immediately preceding the filing of this suit, through and including the
date of this Court's issuance of the Court Supervised Notice.
b. An order awarding attorneys’ fees and costs pursuant to § 216 of the FLSA.
c. That the Court find Novartis in violation of the overtime compensation
provisions of the FLSA and that the Court find that Novartis’ violation of the
FLSA were and are willful.
d. That the Court award Wong, the putative Class and all similarly situated
employees overtime compensation for all the previous hours worked over
forty (40) hours, that they did not receive at least one and one-half time
compensation for, in any given week during the past three years, AND

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