Resolving a split among the federal appeals courts, the U.S. Supreme Court has ruled on the question of whether pharmaceutical sales representatives are, under the Fair Labor Standards Act (FLSA), ’outside salespeople’ who are exempt from overtime pay. The major bone of contention is that such reps can’t literally sell drugs: Only pharmacies can do so. Does that mean they’re not ’outside salespeople’? That question has now been answered.

So what’s ’selling,’ anyway? The justices’ decision came in Christopher v. SmithKline Beacham on June 18. Pharmaceutical representatives, also called ‘detailers,’ visit doctors, discuss how their companies’ products work, and leave free samples. By tracking prescriptions placed at pharmacies, the reps’ employers find out how successful they have been in persuading doctors—and reward them accordingly with commissions. And, most reps work at least 40 hours a week in their visits, and are required to attend events, review product information, and answer phone calls and e-mails for an additional 10 to 20 hours a week.

However, they are quite well compensated for their work: Christopher and Buchanan, the plaintiffs in this case, worked for SmithKline Beacham from 2003 to 2007, earning $72,000 and more than $76,000 a year, respectively. Other detailers can make as much as $90,000.  And, people in this job don’t punch time clocks or otherwise report their hours and receive only minimal supervision.

To the majority of justices, the fact that reps can’t literally sell drugs is a technicality: To them, the reps looked and acted like outside salespeople. The 9th Circuit had recently ruled the same way in this case, which the plaintiffs appealed to the Supreme Court. But the 2nd Circuit had said the opposite, as had a number of other courts. The majority in this case included Alito, who wrote the opinion, Roberts, Scalia, Thomas, and Kennedy. Breyer, Ginsburg, Sotomayor, and Kagan dissented, finding that the reps should receive overtime because they cannot literally sell.

How much deference to DOL? In 2009, the U.S. Department of Labor (DOL) issued a new interpretation of how pharma reps should be classified, and it was the basis for a friend-of-the-court briefs issued to the federal appeals courts hearing such cases. The briefs explained that FLSA’s description of what constitutes a sale is somewhat ambiguous and should be interpreted to mean that a sale feature a "consummated transaction" such as a transfer of title. All nine justices noted that for the 70 years before 2009, DOL had accepted the idea that pharma reps were outside salespeople and exempt from overtime.

So, they observed, DOL’s new interpretation would impose massive liability for conduct that occurred before it issued the interpretation. Further, DOL had conducted no enforcement of the new approach and had given no opportunity for public comment. So neither the majority nor the dissent gave any deference to the interpretation.