What burden of proof applies to an employer when demonstrating the applicability of a Fair Labor Standards Act (FLSA) exception? The Supreme Court will soon weigh in as it considers EMD Sales v. Carrera next term.
In 2017, a suit was filed alleging that EMD Sales had violated the FLSA by failing to pay overtime to eligible employees. EMD argued that the plaintiffs counted as “outside salesmen” and were not eligible for overtime pay. This argument was rejected on the basis that EMD had not established that the plaintiffs’ primary job role was as “outside salesmen.”
EMD appealed, saying that the trial court had required it to provide “clear and convincing evidence,” not a mere “preponderance of evidence” regarding the employees’ overtime eligibility. Clear and convincing evidence is a much higher standard of proof than “preponderance of evidence,” which is the standard across other appellate courts considering FLSA exemptions.
Non-profit consumer advocacy organization Public Citizen filed an opposition to the petition, arguing that, in this instance, the standard of proof made no difference and that the Supreme Court should turn down the case. The Biden Administration also weighed in, noting that the Supreme Court should reverse the decision without review. Several business groups have similarly urged a reversal, noting that a “clear and convincing” standard can make it difficult for employers to demonstrate when an exemption applies and may result in increased litigation.
The Supreme Court will hear the case during its next term, beginning October 2024, with a ruling expected by the end of that term.
If you are an employer with questions regarding paying overtime pay to employees, contact Warner PLLC today. We can help walk you through your specific situation and provide guidance suited to your unique employment law needs.
