Thirteen claimants working as sales representatives for Pharmmedix maintains

their status for the duration of employments should be categorized as employees instead

of independent contractors. The claimants are seeking all benefits under the status of

employee according to the Fair Labor Standard Act. After performing the six factor Silk

test it is reasonable to conclude that the claimants performed duties as independent

contractors and are not eligible for benefits as an employee.

Pharmmedix exercised limited control over the manner in which the claimants

performed tasks. The claimants were allowed to use various marketing strategies to

increase the number of potential prescriptions. The claimants were allowed to maintain as

many or as few clients as s/he desired. Additionally, the claimants were allowed to set

their own schedule. As it pertains to degree of control, the claimants acted as independent

contractors.

Pharmmedix used two factors to the determine pay for the claimants – base salary

and commission from sales. Although the amount paid in commission is not indicative of

managerial skills the claimants’ sales are a representation of the individuals’ skill. The

techniques used by the claimant to increase sales can be viewed as an opportunity for

profit or loss dependent on managerial skills. Additionally, the claimants had the

responsibility of making managerial decisions in an effort to realize a loss or a gain. As it

pertains to opportunities for profit or loss dependent on managerial skill, the claimants

acted as independent contractors.

Each claimant had the sole responsibility to supply equipment and materials used

in the role. The claimants supplied gifts as well as individual transportation. The

claimants’ individual investment proves that they operated as independent contractors.

The Pharmmedix claimants obtained sales by enticing physicians with gifts they

purchased. The sales task is not complex in nature and Pharmmedix did not provide

instruction on how to secure the sale. The level of skill required supports the claimants

work status as independent contractors as Pharmmedix did not provide guidance in this

area. Permanency of working relation is not a determining factor as there is no evidence

to support the length of time each claimant was to work for Pharmmedix.

As it relates to the claimants, being an integral part of Pharmmedix’s business the

argument can be decided in favor of the claimants being employees. The individuals were

hired strictly as sales representatives for Pharmmedix. The claimants were an integral part

of the business development (sales) part of the business. Pharmmedix can argue that

development of the product or manufacturing the product is just as important to the

business, as a whole. If Pharmmedix had hired a sales firm who then enlisted its sales

representatives it would be easier to prove that all claimants were employees of the sales

firm hired. All claimants acted as direct employees of Pharmmedix.

Pharmmedix gave claimants full control in the matter of behavioral control.

Pharmmedix gave full discretion to the claimants regarding individual investment into the

business. There was no evidence to support the continuity of the relationship. The

claimants were essential in the sales division of Pharmmedix. For purposes of the FLSA,

the claimants are not considered employees.