FLSA exemptions don’t require higher burden of proof

Today, the US Supreme Court ruled in EMD Sales v. Carrera that employers need to show that an employee is exempt only by a “preponderance of the evidence,” meaning it is more likely true than not. In other words, if 50.1% of the evidence favors the employer, the exemption applies and the employer wins.

The plaintiffs in the case had sought to apply a more stringent “clear and convincing evidence” standard, meaning the evidence must show it is highly probable that an employee qualified for an FLSA exemption – not quite as strict as the “beyond a reasonable doubt” standard used in criminal cases, but more strict than the “preponderance of the evidence” standard.

The Supreme Court rejected their appeal on three grounds:

1. FLSA exemptions do not fall under any of the three circumstances under which the Court deviates from the “preponderance of the evidence” standard: if a statute requires it; if the Constitution requires it; or in certain rare situations involving coercive government action such as taking away a person’s citizenship.
2. The FLSA does not specify a standard of proof for exemptions; and when a civil statute is silent, courts typically apply the “preponderance of the evidence” standard.
3. There is no need to apply the higher “clear and convincing evidence” standard just because the FLSA protects the public interest in a fair economy or because rights under the FLSA are nonwaivable and therefore different from other rights subject to the “preponderance of the evidence” standard. “[W]aivability of a right does not determine the standard of proof,” the Court ruled.