One year after the US Supreme Court held that courts should not use a heightened evidence standard for Fair Labor Standards Act (FLSA) exemption disputes, the holding is turning up in other types of cases, even if its impact is somewhat limited. The ruling in EMD Sales Inc. et al. v. Carrera et al. held that a lower “preponderance of the evidence” standard is permissible for FLSA exemption cases instead of a “clear and convincing evidence” standard.
Bracewell’s Brian Patterson told Law360 he finds the ruling helpful by standardizing the burden employers must meet to prove an FLSA exemption, but not “transformative” for employers.
“This uniformity makes summary judgment motions on exemption issues marginally more viable in the Fourth Circuit for close cases,” Patterson said. “However, the substantive tests for each exemption remain unchanged, and employers still bear real risk if they misclassify employees.”
