In E.M.D. Sales, Inc. v. Carrera, 604 U.S. 45 (2025), the Supreme Court held that the preponderance-of-the-evidence standard governs when an employer seeks to demonstrate that an employee is exempt from the minimum-wage and overtime-pay provisions of the Fair Labor Standards Act. The decision reversed a Fourth Circuit ruling that had required employers to prove FLSA exemptions by clear and convincing evidence, bringing the Fourth Circuit into alignment with every other federal court of appeals to address the issue. The holding modestly lowers an employer’s evidentiary burden in this circuit but leaves intact the rule that the employer bears the burden of proof, and on remand the employees may still prevail.
Statutory Background
The Fair Labor Standards Act of 1938 guarantees covered workers a federal minimum wage, 29 U.S.C. § 206(a)(1), and generally requires overtime pay when a covered employee works more than 40 hours per week, § 207(a)(1). The Act exempts many categories of employees from these obligations. See § 213(a)–(b). The exemption at issue in Carrera encompasses anyone employed “in the capacity of outside salesman”—one who primarily makes sales and regularly works away from the employer’s place of business. § 213(a)(1). The Supreme Court has long held that the employer bears the burden of proving that an FLSA exemption applies. See Corning Glass Works v. Brennan, 417 U.S. 188, 196–97 (1974). The FLSA does not, however, specify the standard of proof an employer must satisfy to carry that burden. That silence gave rise to the question before the Court.
Facts and Procedural History
EMD distributes international food products in the Washington, D.C. metropolitan area and employs sales representatives who manage inventory and take orders at grocery stores stocking EMD products. Several representatives sued EMD in the U.S. District Court for the District of Maryland alleging the company violated the FLSA by failing to pay overtime. EMD did not deny that the employees worked more than 40 hours per week without overtime pay; it argued the employees were outside salesmen exempt under § 213(a)(1). After a bench trial, the district court found EMD failed to prove “by clear and convincing evidence” that the employees were outside salesmen—finding they primarily executed the terms of sales already made rather than making new sales themselves—and ordered EMD to pay overtime wages and liquidated damages. The Fourth Circuit, applying its own circuit precedent, affirmed. Carrera v. EMD Sales, Inc., 75 F.4th 345 (4th Cir. 2023). The Fourth Circuit stood alone among the federal courts of appeals in requiring clear-and-convincing-evidence proof of FLSA exemptions, and the Supreme Court granted certiorari to resolve the split.
The Court’s Decision
The Supreme Court reversed. Writing for a unanimous Court, Justice Kavanaugh held that the default preponderance standard governs FLSA exemption disputes. When Congress enacted the FLSA in 1938, the preponderance-of-the-evidence standard was the established default in American civil litigation, and it remains so today. That default “allows both parties in the mine-run civil case to share the risk of error in roughly equal fashion.” Id. at 50.
The Court identified only three circumstances in which it has deviated from this default in civil cases: (1) where a statute establishes a heightened standard, as the FLSA’s own whistleblower-retaliation provision does, 29 U.S.C. § 218c(b)(1); (2) where the Constitution requires one, as in certain First Amendment cases and in proceedings involving involuntary civil commitment or termination of parental rights; and (3) in certain “uncommon” cases involving “unusual coercive action” by the government, such as expatriation or denaturalization. The Court held that none of these exceptions applies. The FLSA is silent on the standard of proof, and “[s]tatutory silence is generally inconsistent with the view that Congress intended to require a special, heightened standard of proof.” Id. at 52. FLSA cases are most closely analogous to Title VII employment-discrimination cases, in which the preponderance standard has long applied. “If clear and convincing evidence is not required in Title VII cases,” the Court reasoned, “it is hard to see why it would be required in Fair Labor Standards Act cases.” Id. at 52.
The Court rejected the employees’ policy arguments. The public interest in a fair economy did not distinguish the FLSA from Title VII; the non-waivability of FLSA rights did not dictate the standard, because waivability and the standard of proof are distinct inquiries; and that employers control much of the evidence and that FLSA plaintiffs may be low-income did not justify a heightened standard, as the same is true in Title VII cases. Justice Gorsuch, joined by Justice Thomas, concurred to emphasize that civil cases ordinarily call for proof by a preponderance unless Congress alters that default or the Constitution forbids it. The Court declined to affirm on the alternative ground that the employees would not qualify as outside salesmen even under a preponderance standard, leaving that question for the Fourth Circuit on remand.
Analysis
Carrera represents a meaningful but contained adjustment to FLSA litigation in the Fourth Circuit. The burden of proof remains squarely on the employer; the Court reaffirmed that “the law places the burden on the employer to show that an exemption applies.” Id. at 48. Carrera changes only the quantum of evidence the employer must marshal, not the allocation of that burden, and the opinion does not disturb the substantive contours of each exemption or the requirement that an employer prove the employee’s actual duties fall within the exemption claimed.
The decision’s reasoning applies to different FLSA exemptions an employer might assert, administrative, executive, professional, computer, highly compensated, motor carrier, and others. Employees and their counsel litigating any FLSA exemption defense in the Fourth Circuit should anticipate that employers will invoke Carrera to lower the evidentiary bar. The response is a thorough factual record, such as testimony and other evidence of actual duties performed, directed at exposing any gap between the employer’s chosen exemption label and the work the employee actually performs.
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