On June 17, 2024, the U.S. Supreme Court announced that it will tackle a 6-1 circuit split and decide an important wage and hour issue for employers: what burden of proof an employer must satisfy to demonstrate that its workers are exempt from the minimum wage and overtime requirements imposed by the Fair Labor Standards Act (“FLSA”).

In civil cases, the burdens of proof typically are either one of the following: (1) the “preponderance of the evidence” standard, which requires a showing that the assertion in dispute is more likely to be true than false, or (2) the “clear and convincing” standard, which requires a showing that the assertion in dispute is far more likely to be true than false.  In FLSA cases, an employer asserting that its workers are exempt from the FLSA’s minimum wage and overtime requirements carries the burden of proving the exemption applies, and at least six Circuit courts have determined that employers must do so by a preponderance of the evidence standard.  The Fourth Circuit, however, has repeatedly stood in contrast and held that employers must meet the higher clear and convincing evidence standard.

In E.M.D. Sales, Inc. v. Carrera, the petitioner-employer requested the high court’s review of the Fourth Circuit’s adoption of the higher clear and convincing evidence standard in exemption cases, given that the FLSA’s exemptions are one of the most frequently litigated issues in federal employment law and consistency is needed among the Circuits.  In its petition, the petitioner-employer has argued that the burden of proof is always crucial to—and frequently determinative of—an FLSA lawsuit’s outcome, and has urged the Supreme Court to adopt the preponderance of the evidence standard

The employer in E.M.D. Sales, Inc. v. Carrera has support for its position.  The federal government filed an amicus brief and asked the Court to summarily reverse the Fourth Circuit’s decision, asserting that its adoption of the higher standard of proof is “unreasoned and inconsistent with” Supreme Court precedent and lacks “any valid rationale.”  The Chamber of Commerce, representing the interests of the business community, likewise filed an amicus brief and argued that a heightened standard both threatens employers headquartered within the Fourth Circuit’s boundaries and raises the risk of forum shopping in cases against employers that operate nationwide.

The Supreme Court’s decision will have a significant impact on the legal strategies for employers defending against FLSA claims and needing to meet their burden of proof that an exemption applies to its workers.  The Court is expected to hear the case during its 2024-2025 term, which will begin in October.  Subscribe to our wage and hour blog to stay current on the latest developments.

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Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York Times, Reuters, Bloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.

Photo of Philippe A. Lebel Philippe A. Lebel

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and…

Philippe (Phil) A. Lebel represents employers in all aspects of employment litigation, including wage and hour, wrongful termination, discrimination, harassment, retaliation, defamation, trade secrets, and breach of contract litigation, in both the single-plaintiff and class- and/or representative-action context, at both the trial and appellate level, and before administrative agencies.

In addition to his litigation work, Phil regularly advises clients regarding compliance with federal, state and local employment laws, and assists a variety of companies and financial firms in evaluating labor and employment issues in connection with corporate transactions. Phil also has experience assisting employers with sensitive employee investigations and trainings.  Phil also represents employers in connection with labor law matters, such as labor arbitrations and proceedings before the National Labor Relations Board.

Phil has assisted clients in a wide array of sectors including in the biotech, education, entertainment, financial services, fitness, healthcare, high-tech, legal services, manufacturing, media, professional services, sports, and staffing industries, among others.

Phil regularly speaks on emerging issues for employers and has been published or quoted in Law360, the Daily JournalThe Hollywood ReporterBusiness Insurance, and SHRM.org regarding a variety of labor and employment law topics.

During college, Phil worked on political campaigns in Atlanta, Georgia and Birmingham, Alabama, and was an intern with the National Gay and Lesbian Task Force and the Gay and Lesbian Victory Fund. Phil is a former member of the Board of Directors of the AIDS Legal Referral Panel.

Photo of Kramer Rice Kramer Rice

Kramer Rice is an associate in the Labor & Employment Law Department and a member of the firm’s Employment Litigation & Arbitration, Class & Collective Action, Wage and Hour, Sports Law, and Appellate Groups.

Kramer represents and counsels clients in all aspects of…

Kramer Rice is an associate in the Labor & Employment Law Department and a member of the firm’s Employment Litigation & Arbitration, Class & Collective Action, Wage and Hour, Sports Law, and Appellate Groups.

Kramer represents and counsels clients in all aspects of labor and employment law. He regularly defends employers before state and federal courts and administrative agencies in single and multi-plaintiff actions concerning discrimination, harassment, retaliation, wage and hour, union contract, and restrictive covenant disputes. To this end, Kramer has represented client interests before numerous state and federal courts of appeal. Kramer’s representations span an array of industries and organizations, such as sports leagues and teams, law firms, financial institutions, colleges and universities, media groups and energy companies.

Kramer also maintains an active pro bono practice involving both domestic and international issues.

While in law school, Kramer interned with the in-house group at Viacom Media Networks. He also was a member and published author in the Notre Dame Law School Journal of Legislation and served with distinction on the Jessup International Moot Court Team.

Photo of Julia Hollreiser Julia Hollreiser

Julia Hollreiser is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group.

Julia represents employers in a wide range of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, and…

Julia Hollreiser is an associate in the Labor & Employment Department and a member of the Employment Litigation & Arbitration Group.

Julia represents employers in a wide range of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, and wage and hour law violations.  She has experience assisting in single-plaintiff, multi-plaintiff, and class and collective action litigations, in federal and state courts as well as before administrative agencies.  Julia represents clients across a variety of industries including sports, financial services, media and entertainment, higher education, and law firms. Julia also counsels clients on a broad range of employment issues, including investigations into sensitive employment matters, employee terminations and discipline, and employment policies and procedures.

Julia earned her J.D., summa cum laude, from Cornell Law School, where she was a member of the Order of the Coif and graduated first in her class. Julia was also the Managing Editor of the Cornell Law Review and a member of the Moot Court Board. While at Cornell, Julia worked as a student attorney in several clinical programs, representing clients in immigration matters and in employment discrimination matters before the New York State Division of Human Rights. While in law school, Julia was a judicial intern for the Honorable Ronnie Abrams in the Southern District of New York.