Eugene KUZINSKI, Marc Campano, Jerry Harris, and Shawn Jones, on behalf of themselves and others similarly situated, Plaintiff-Appellees, v. SCHERING CORPORATION, Defendant-Appellant, 384 F. App'x 17

SUMMARY ORDER Defendant Schering Corporation (“Schering”) appeals pursuant to 28 U.S.C. § 1292(

b) from an order of the United States District Court for the District of Connecticut, Janet Bond Arterton, Judge, which denied its motion for

summary judgment dismissing the claims of plaintiffs, pharmaceutical sales representatives (“Reps”) formerly employed by Schering, for overtime pay under the Fail-Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 201 et seq. Schering moved for

summary judgment, arguing that Reps fall within the FLSA’s exemption for “outside salesm[e]n,” 29 U.S.C. § 213(a)(1). In a ruling dated March 30, 2009 and reported at 604 F.Supp.2d 385, the district court denied Schering’s motion, concluding that, because the Reps undisputedly do not sell or make sales as those terms are defined in the FLSA and the regulations promulgated thereunder by the Secretary of Labor, the Reps fall outside the FLSA’s outside sales employee exemption. In an order dated April 17, 2009, the district court certified its order denying

summary judgment as worthy of an immediate appeal pursuant to § 1292(b). Schering petitioned this Court, as required by that section, for leave to appeal; we granted the petition and heard Schering’s appeal in tandem with the appeal in In re Novartis Wage and Hour Litigation, 611 F.3d 141. We assume the parties’ familiarity with the remaining facts and procedural history of the ease. On appeal, Schering contends that the district court erred as a matter of law in determining that the Reps were not exempt outside salesmen. We disagree.

The burden of proving that employees fall within an exemption from the FLSA overtime pay requirements is on the employer. See, e.g., Bilyou v. Dutchess Beer Distributors, Inc., 300 F.3d 217, 222 (2d Cir.2002). Reviewing the matter de novo, and taking the record in the light most favorable to the plaintiffs, see, e.g., Dillon v. Morano, 497 F.3d 247, 251 (2d Cir.2007), we conclude, for the reasons stated in the district court’s well-reasoned ruling, see 604 F.Supp.2d at 395-403, that Schering did not meet its burden. Accordingly, we affirm the order denying

summary judgment for the reasons stated in the district court’s ruling and for the reasons stated in our opinion in In re Novartis Wage & Hour Litigation, 611 F.3d 141 (2d Cir.2010), also issued today. We have considered all of Schering’s contentions on this appeal and have found them to be without merit. The order of the district court denying Schering’s motion for

summary judgment is affirmed, and the matter is remanded for further proceedings not inconsistent with this order.