On January 15, 2025, the U.S. Supreme Court issued a unanimous decision in E.M.D. Sales, Inc., et al. v. Carrera, et. al., which will impact the standard of proof in cases involving the Fair Labor Standards Act (“FLSA”). The Court in E.M.D. Sales held that employers only need to prove that an employee is exempt from minimum wage and overtime pay requirements under the FLSA by a “preponderance of the evidence,” as opposed to the much higher “clear and convincing” evidence standard.
The FLSA establishes a federal minimum wage for covered workers and requires overtime pay for those working over 40 hours per week, among other wage and hour requirements that affect employees in the private sector, as well as in federal, state, and local government. Several types of qualified workers, including outside salespeople, fall under an exemption from the overtime pay requirement. If an exemption is challenged, the employer has the burden of proof to show that an exemption applies. However, the FLSA does not specify a standard of proof for that burden, so it has been left to the courts over the years to determine the legal standard.
E.M.D. Sales ends the previous 6-1 circuit split as to the burden of proof for employers to establish an FLSA exemption. Every federal Court of Appeals to have addressed this question has held that the exemption must be proven by a preponderance of the evidence standard, except for the Fourth Circuit. The Fourth Circuit held that employers must prove an exemption by clear and convincing evidence, a higher burden. In E.M.D. Sales, three employees classified under the outside salesperson exemption alleged that the company violated the FLSA by failing to pay them overtime. The district court and Fourth Circuit applied the clear and convincing standard, which brought the case to the U.S. Supreme Court.
Justice Brett Kavanaugh, delivering the opinion for the U.S. Supreme Court, reiterated that the default burden of proof in U.S. civil litigation is preponderance of the evidence. The employees in E.M.D. Sales argued that a heightened standard under the FLSA would protect public interest, especially since employee’s rights under the FLSA are nonwaivable. The U.S. Supreme Court’s opinion rejected these arguments and cited other workplace protections, such as those under Title VII, which are subject to a preponderance of the evidence standard.
By resolving the circuit split and applying the preponderance of the evidence standard, E.M.D. Sales, creates a uniform national standard and clarifies the evidentiary burden for employers to prove that any of the FLSA’s exemptions apply. If you have any questions about your organization’s wage and hour practices, employee classifications, or any other HR and Employment law matters, please reach out to V. John Ella or anyone else in our HR & Employment Practice Group.
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