Burden of Proof Standard for FLSA Overtime Exemption

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January 15, 2025

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  • Employers must meet the preponderance of the evidence standard to prove that employees are properly classified as overtime exempt under the FLSA.

Discussion:

In E.M.D. Sales, Inc. v. Carrera, the U.S. Supreme Court said that employers must meet the preponderance of the evidence standard, rather than the clear and convincing standard, to prove that an employee qualifies as exempt under the Fair Labor Standards Act (FLSA).

 

Here, sales representative employees classified as exempt under the outside sales exemption claimed they were misclassified because their job duties involved managing inventory and taking orders at grocery stores. The trial and Fourth Circuit courts said the employer failed to meet a clear and convincing burden of proof showing that the employees qualified as overtime exempt. Given that all other circuit courts followed the preponderance of the evidence standard in these cases, a circuit split was created.

 

The Supreme Court said that the preponderance of the evidence standard is the default measure for a burden of proof. It allows both parties in a civil case to “‘share the risk of error in roughly equal fashion.’” The only times when the stricter clear and convincing evidence burden has been used is (1) when required by statute; (2) when required by the Constitution; or (3) in rare situations involving coercive government action, such as taking away a person’s citizenship. Otherwise, in most civil cases, including those brought under Title VII of the Civil Rights Act, the preponderance of the evidence standard is used. Because the FLSA is silent on the type of burden that must be met, and does not meet any other noted exception, courts must apply the preponderance of the evidence standard.

 

Action Items

  1. Review overtime exempt classifications to ensure they meet the applicable requirements.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2025 ManagEase