Supreme Court to settle burden of proof for FLSA overtime exemptions
The Supreme Court will decide what the burden of proof should be to claim an exemption from FLSA overtime requirements.
Published: June 17, 2024 | by Michael Cardman, Senior Legal Editor at Brightmine
The Supreme Court will decide what the burden of proof should be for employers that want to claim an exemption from the overtime requirements of the Fair Labor Standards Act (FLSA).
Currently, appellate courts for the 5th, 6th, 7th, 9th, 10th and 11th Circuits — which collectively cover most of the United States outside of the Northeast, the Mid-Atlantic and parts of the Midwest — have held that employers must show that an employee is exempt by a “preponderance of the evidence,” meaning it is more likely true than not true. In other words, if 50.1% of the evidence favors the employer, the exemption applies and the employer wins.
However, last year the 4th Circuit Court of Appeals — which has jurisdiction over Maryland, North Carolina, South Carolina, Virginia and West Virginia — upheld its longstanding stance that “clear and convincing evidence” should be the standard. This means 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.
Soon after, the employer in that 4th Circuit case asked the Supreme Court to resolve this split in the circuits. “As it stands, 1.1 million employers in the [4th Circuit] face an unjustifiably stringent legal burden that applies in no other circuit and governs no other remotely analogous area of the law,” they said.
The employees responded that it was not necessary for the Supreme Court to hear the case, as the standard for the burden of proof rarely, if ever, determines the outcome of a case. Not once in the 30 years since the 4th Circuit established its “clear and convincing evidence” standard has it identified a case where the standard of proof made a difference, they said.
The Supreme Court apparently was persuaded by the employers’ request and today agreed to hear the case.
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About the author
Michael Cardman
Senior Legal Editor, Brightmine
Michael Cardman has more than 20 years of experience in publishing and has specialized in employment law for more than 15 years. As a member of the Brightmine editorial team, he focuses on wage and hour compliance, including minimum wage, overtime, employee classification, hours worked, independent contractors and child labor.
Michael holds a Bachelor of Arts degree in English from the University of Virginia. Prior to joining Brightmine, he was the managing editor for Thompson Publishing Group’s library of HR publications. In this role, he was responsible for overseeing books, manuals and online tools covering a variety of topics such as wage and hour, employee leaves, employee benefits and compensation.
Connect with Michael on LinkedIn.