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:
- 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.
- 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.
- 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.
