Supreme Court to Settle Burden of Proof for FLSA Overtime Exemptions

Author: Michael Cardman, Brightmine Senior Legal Editor

June 17, 2024

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.