Jottings By An Employer's Lawyer

Sunday, March 13, 2005

Pharmacists Are Professionals - First Impression at the First Circuit

A little hard to believe, but the 1st Circuit notes it is the first court of appeals to address whether or not a pharmacist is an exempt employee under the Fair Labor Standards Act. Probably not so surprising, since only in the last few years, when almost anything seems to be a possible wage and hour violation, most would not have challenged the idea that a pharmacist is in fact a professional. (I have heard that pharmacists often consider themselves considerably overtrained, or more accurately substantially under used by our healthcare system which is so doctor-centric.) But when given a chance, the Court (under the old rules) did not confound conventional wisdom - pharmacists are exempt. Jesus-Rentas v. Baxter Pharmacy Services Corp. (1st Cir. 3/9/05) [pdf].

The real fight was over whether or not their work "required the consistent exercise of discretion and judgment." The pharmacist plaintiffs argued that since they were required to follow Baxter's Standard Operating Procedures, it did not. The Court undercut that argument in at least 3 ways. Most importantly, the pharmacist remained ultimately responsible for the health of the patient, including when to not follow the SOP, and also to follow up with the physician if the prescription were contraindicated for the particular patient. Secondly, they themselves had input into the SOP, and the very act of giving such input required the exercise of discretion and judgment. Finally, they supervised others, while not being closely supervised themselves.

Although no fellow court had ruled on the issue of pharmacists, the Court found comfort in the 5th Circuit's decision in Owsley v. San Antonio Indep. Sch. Dist., 187 F.3d 521, 526 (5th Cir. 1999) which held that athletic trainers met the professional standard. At the time of that decision, I thought it pushed the outer boundry of the professional exemption, but apparently the 1st Circuit had no such concerns.

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