“The Fourth Circuit’s outlier decision cannot be reconciled with Supreme Court precedent.”
—John Masslon, WLF Senior Litigation Counsel

Click here for WLF’s brief.

WASHINGTON, DC— Washington Legal Foundation (WLF) today urged the U.S. Supreme Court to hold that employers need to prove the applicability of Fair Labor Standards Act exemptions by a preponderance of the evidence. In an amicus brief, WLF argues that the U.S. Court of Appeals for the Fourth Circuit erred by applying the clear and convincing evidence standard.

The case arises from a suit by three salesmen who helped a woman-owned business sell goods to stores in the Washington, DC metro area. The three salesmen worked more than forty hours per week and argued that they were entitled to overtime under the FLSA. EMD, however, argued that the three salesmen were covered by the FLSA’s “outside salesmen” exemption. The District Court held that EMD failed to prove that the exemption applied by clear and convincing evidence, and the Fourth Circuit affirmed that decision.  

WLF’s brief details why the Fourth Circuit’s outlier position requiring employers to prove FLSA exemptions by clear and convincing evidence is wrong. The Fourth Circuit cited a single Tenth Circuit case supporting that burden. The Tenth Circuit, however, has held that the Fourth Circuit’s decision is wrong. Requiring clear and convincing evidence to show an FLSA exemption arose from the principle that FLSA exemptions must be construed narrowly. But the Supreme Court rejected that principle six years ago. The Fourth Circuit’s decision ignores that precedent.

WLF’s brief also explains how the Fourth Circuit’s decision conflicts with both the FLSA’s history and purpose. The FLSA tries to raise the standard of living for low-wage workers while ensuring that businesses can continue to turn a profit. Forcing employers to pay overtime to outside salesmen conflicts with this history and purpose because it will lead to a less efficient workforce, higher prices, or more unemployment. These results all hurt employers, employees, and consumers. The same is true of making it harder for employers to prove the applicability of other FLSA exemptions. So the only way to advance the FLSA’s purpose is to reverse the Fourth Circuit.

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