Amicus Curiae Brief — E.M.D. Sales, Inc., et al., Petitioners v. Faustino Sanchez Carrera, et al.

No. 23-217

IN THE

Supreme Court of the United States

E.M.D. SALES, INC. AND ELDA M. DEVARIE, Petitioners,

v.

FAUSTINO SANCHEZ CARRERA, JESUS DAVID MURO,

AND MAGDALENO GERVACIO, Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

BRIEF OF AMICI CURIAE THE CHAMBER OF

COMMERCE OF THE UNITED STATES OF

AMERICA, NATIONAL FEDERATION OF

INDEPENDENT BUSINESS SMALL BUSINESS

LEGAL CENTER, INC., NATIONAL RETAIL

FEDERATION, AND RESTAURANT LAW CENTER

IN SUPPORT OF PETITION FOR CERTIORARI

STEPHANIE A. MALONEY

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H STREET, NW

WASHINGTON, DC 20062

(202) 463-5337

Counsel for the Chamber of

Commerce of the United

States of America

October 10, 2023

STEVEN A. ENGEL

MICHAEL H. MCGINLEY

Counsel of Record

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

ANTHONY R. JADICK

CIRA CENTRE

DECHERT LLP

2929 Arch Street

Philadelphia, PA 19104

Counsel for Amici Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION

AND

SUMMARY

OF

ARGUMENT ................................................................ 3

ARGUMENT ................................................................ 6

I.

This Case Cleanly Presents An Important And

Recurring Question That Has Divided The

Circuits .................................................................. 6

II. The Fourth Circuit’s Outlier Approach

Undermines The FLSA’s Design And Poses A

Threat To American Business ............................ 11

A. The Fourth Circuit’s Heightened Burden

Of Proof Thwarts The FLSA’s Legislative

Design............................................................ 11

B. The Fourth Circuit’s Heightened Burden

Of Proof Has A Profound Impact On The

Business Community .................................... 15

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

Cases

Addington v. Texas,

441 U.S. 418 (1979)................................................ 12

Anani v. CVS RX Servs., Inc.,

730 F.3d 146 (2d Cir. 2013) ..................................... 6

Brooklyn Sav. Bank v. O’Neil,

324 U.S. 697 (1945)................................................ 11

California ex rel. Cooper v. Mitchell Bros.

Santa Ana Theater, 454 U.S. 90 (1981) ................ 16

Chaplin v. SSA Cooper, LLC,

2017 WL 2618819 (D.S.C. June 16, 2017) ............ 18

Chaunt v. United States,

364 U.S. 350 (1960)................................................ 13

Chouinard v. Perfection Snacks,

2023 WL 4980939 (E.D. Pa. Aug. 3, 2023).............. 8

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012)........................................ 7, 9, 20

Coast Van Lines v. Armstrong,

167 F.2d 705 (9th Cir. 1948).................................. 10

Concrete Pipe & Prod. of California, Inc. v.

Constr. Laborers Pension Tr. for S. California,

508 U.S. 602 (1993)................................................ 15

Covington v. FMC & Assocs., LLC,

2023 WL 5133184 (D.D.C. Aug. 10, 2023) .............. 8

Cruzan v. Dir., Missouri Dep’t of Health,

497 U.S. 261 (1990)................................................ 16

iii

Desmond v. PNGI Charles Town Gaming, L.L.C.,

564 F.3d 688 (4th Cir. 2009).................................. 10

Dybach v. State of Fla. Dep’t of Corr.,

942 F.2d 1562 (11th Cir. 1991).............................. 10

Echevarria v. ABC Corp.,

2023 WL 5880417 (E.D.N.Y. Sept. 11, 2023) .......... 7

Egelhoff v. Egelhoff ex rel. Breiner,

532 U.S. 141 (2001)................................................ 16

Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134 (2018)...................................... 11, 14

Encino Motorcars, LLC v. Navarro,

579 U.S. 211 (2016).................................................. 9

Esquivel v. Lima Restaurant Corp.,

2023 WL 6338666 (E.D.N.Y. Sept. 29, 2023) .......... 7

Faludi v. U.S. Shale Sols., L.L.C.,

950 F.3d 269 (5th Cir. 2020).................................. 10

Faragher v. City of Boca Raton,

524 U.S. 775 (1998)................................................ 13

Ferens v. John Deere Co.,

494 U.S. 516 (1990)................................................ 21

Griffin v. Griffin,

916 N.W.2d 292 (Mich. App. Ct. 2018) ................. 16

Grogan v. Garner,

498 U.S. 279 (1991)................................................ 13

Hairgrove v. City of Salisbury,

2023 WL 5985349 (M.D.N.C. Sept. 14, 2023) ......... 7

Halo Elecs., Inc. v. Pulse Elecs., Inc.,

579 U.S. 93 (2016).................................................. 12

iv

Hanna v. Plumer,

380 U.S. 460 (1965)................................................ 21

Hendricks v. Total Quality Logistics, LLC,

2023 WL 6255723 (S.D. Ohio Sept. 26, 2023) ......... 7

Heras v. Metropolitan Learning Institute, Inc.,

2023 WL 5810784 (E.D.N.Y. Aug. 18, 2023)........... 8

Herman & MacLean v. Huddleston,

459 U.S. 375 (1983).......................................... 13, 14

Herrera v. TBC Corp.,

18 F. Supp. 3d 739 (E.D. Va. 2014) ....................... 10

Jackson v. ReliaSource, Inc.,

2017 WL 193294 (D. Md. Jan. 18, 2017) ............... 18

Jewell Ridge Coal Corp. v. Local No. 6167, United

Mine Workers of Am., 325 U.S. 161 (1945) ........... 11

Lederman v. Frontier Fire Prot., Inc.,

685 F.3d 1151 (10th Cir. 2012).................. 10, 13, 14

Leflar v. Target Corp.,

57 F.4th 600 (8th Cir. 2023) ............................ 11, 15

Lint v. Nw. Mut. Life Ins. Co.,

2010 WL 4809604 (S.D. Cal. Nov. 19, 2010) ......... 17

Long Island Care At Home, Ltd. v. Coke,

551 U.S. 158 (2007)............................................ 9, 10

Luna Vanegas v. Signet Builders, Inc.,

2023 WL 4926237 (W.D. Wis. Aug. 2, 2023) ........... 8

Manteuffel v. HMS Host Tollroads, Inc.,

2023 WL 5287722 (6th Cir. Aug. 17, 2023)............. 8

McCartt v. Kellogg USA, Inc.,

139 F. Supp. 3d 843 (E.D. Ky. 2015) ..................... 17

v

Microsoft Corp. v. I4I L. P.,

564 U.S. 91 (2011).................................................. 16

Mondragon v. Sushitobox,

2023 WL 5370245 (D.N.J. Aug. 22, 2023) ............... 8

Moodie v. Kiawah Island Inn Co., LLC,

2016 WL 11724398 (D.S.C. Dec. 16, 2016) ............. 8

New York Times Co. v. Sullivan,

376 U.S. 254 (1964)................................................ 14

Orbetta v. Dairyland USA Corp.,

2023 WL 6386921 (S.D.N.Y. Sept. 30, 2023) .......... 7

Overnight Motor Transp. Co. v. Missel,

316 U.S. 572 (1942)................................................ 15

Perry v. Randstad Gen. Partner (US) LLC,

2018 WL 2363979 (E.D. Mich. May 24, 2018) ...... 17

Puentes v. Siboney Contracting Co.,

2012 WL 5193417 (S.D. Fla. Oct. 19, 2012) .......... 17

Renfro v. Indiana Michigan Power Co.,

497 F.3d 573 (6th Cir. 2007).................................. 10

Santosky v. Kramer,

455 U.S. 745 (1982)................................................ 13

Speiser v. Randall,

357 U.S. 513 (1958).................................................. 4

Stark v. ABC Pediatric Clinic, P.A.,

2023 WL 5961657 (S.D. Tex. Aug. 25, 2023) ...... 7, 8

Steadman v. SEC,

450 U.S. 91 (1981).................................................. 12

Su v. E. Penn Mfg. Co.,

No. CV 5:18-cv-01194 (E.D. Pa. May 16, 2023) ...... 8

vi

Trans World Air Lines, Inc. v. Thurston,

469 U.S. 111 (1985)................................................ 15

Tyson Foods, Inc. v. Bouaphakeo,

577 U.S. 442 (2016).................................................. 8

United States Dep’t of Lab. v. Wireless Boys, LLC,

2023 WL 5509560 (N.D. Ohio Aug. 25, 2023) ......... 7

United States v. Virginia,

518 U.S. 515 (1996)................................................ 14

Vela v. City of Houston,

276 F.3d 659 (5th Cir. 2001).................................. 15

Walton v. Greenbrier Ford, Inc.,

370 F.3d 446 (4th Cir. 2004).................................. 15

Washington v. Glucksberg,

521 U.S. 702 (1997)................................................ 14

Williams v. Core Energy, Inc.,

2023 WL 5677543 (S.D. Fla. Aug. 3, 2023) ............. 8

Woodby v. Immigration & Naturalization Serv.,

385 U.S. 276 (1966)................................................ 13

Yi v. Sterling Collision Centers, Inc.,

480 F.3d 505 (7th Cir. 2007)............................ 10, 13

Yuen v. U.S. Asia Com. Dev. Corp.,

974 F. Supp. 515 (E.D. Va. 1997) .......................... 19

Statutes

15 U.S.C. § 6604 ....................................................... 12

18 U.S.C. § 4243 ....................................................... 12

29 U.S.C. § 206 ........................................................... 6

29 U.S.C. § 207 ........................................................... 6

vii

29 U.S.C. § 207(a)(1) ................................................... 6

29 U.S.C. § 213(a) ................................................... 6, 7

29 U.S.C. § 213(a)(1) ................................................... 6

29 U.S.C. § 213(a)(5) ................................................... 6

29 U.S.C. § 213(a)(17) ................................................. 6

29 U.S.C. § 213(a)(19) ................................................. 6

29 U.S.C. § 213(b) ....................................................... 6

29 U.S.C. § 215(a)(3) ................................................... 8

29 U.S.C. § 216(b) ............................................. 8, 9, 21

35 U.S.C. § 282 ......................................................... 16

49 U.S.C. § 30171 ..................................................... 12

Regulations

29 C.F.R. § 541.2....................................................... 15

69 Fed. Reg. 22122 (Apr. 23, 2004) ...................... 7, 20

Other Authorities

18th Annual Workplace Class Action Litigation

Report (2022), https://bit.ly/3PMFamP ............... 7, 9

Gretchen Agena, What’s So ‘Fair’ About It?: The

Need to Amend the Fair Labor Standards Act, 39

Hous. L. Rev. 1119 (2002)...................................... 17

Business Structure, NFIB Small Business Poll

(2004), https://bit.ly/3tluhAO ................................ 20

Comment, Controlling Smart-Phone Abuse: The

Fair Labor Standards Act’s Definition of “Work”

in Non-Exempt Employee Claims for Overtime,

58 U. Kan. L. Rev. 737 (2010) ............................... 17

viii

NFIB National Small Business Poll, Tax

Complexity

and

the

IRS

(2017),

https://bit.ly/3rxMieK ............................................ 21

NFIB Tax Survey, NFIB 2021 Tax Survey:

Summary

of

Findings

(2021),

https://bit.ly/3ZKYSnf ........................................... 21

William T. Salzer, Exploring New Routes To Early

Settlement In Employment Law Cases, Aspatore,

2013 WL 153852 (2013) ........................................... 9

David L. Schwartz & Christopher B. Seaman,

Standards of Proof in Civil Litigation: An

Experiment from Patent Law, 26 Harv. J.L. &

Tech. 429 (2013) ............................................. 4, 5, 17

1

INTEREST OF AMICI CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 members and

indirectly represents the interests of more than three

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the Nation’s business community.

The National Federation of Independent Business

Small Business Legal Center, Inc. (“NFIB Legal

Center”) is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business (“NFIB”), which

is the Nation’s leading small business association,

representing members in Washington, D.C., and all

fifty states. Its membership spans the spectrum of

business operations, ranging from sole proprietor

enterprises to firms with hundreds of employees.

1 Pursuant to Rule 37.6, amici curiae affirm that no counsel for

a party authored this brief in whole or in part and that no person

other than amici curiae, their members, or their counsel made a

monetary contribution to its preparation or submission. Amici

curiae further affirm that counsel of record for all parties received

notice of amici curiae’s intent to file this brief at least 10 days

before its due date.

2

Founded in 1943 as a nonprofit, nonpartisan

organization, NFIB’s mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. To fulfill its role as the voice for

small business, NFIB Legal Center frequently files

amicus curiae briefs in cases that will impact small

businesses.

Established in 1911, the National Retail

Federation (“NRF”) is the world’s largest retail trade

association and the voice of retail worldwide. Retail is

the largest private-sector employer in the United

States. The NRF’s membership includes retailers of

all sizes, formats, and channels of distribution,

spanning all industries that sell goods and services to

consumers.

The NRF provides courts with the

perspective of the retail industry on important legal

issues impacting its members. To ensure that the

retail community’s position is heard, the NRF often

files amicus curiae briefs expressing the views of the

retail industry on a variety of topics.

The Restaurant Law Center is the only

independent public policy organization created

specifically to represent the interests of the foodservice industry in the courts. This labor-intensive

industry is comprised of over one million restaurants

and other food-service outlets employing over 15

million people—approximately 10 percent of the U.S.

workforce—making it the second largest privatesector employers in the United States. Through

regular participation in amicus curiae briefs on behalf

of the industry, the Restaurant Law Center provides

courts with the industry’s perspective on legal issues

3

significantly impacting its members and highlights

the potential impact of pending cases like this one.

Amici’s members employ millions of individuals

throughout the United States and dedicate

considerable time, energy, and resources to complying

with the Nation’s complex and often burdensome

statutory and regulatory regimes, including the Fair

Labor Standards Act (“FLSA”). Amici therefore have

a significant interest in ensuring that the federal

courts properly construe the breadth, scope, and reach

of the FLSA. The Fourth Circuit’s reading requires

Petitioners to shoulder a burden of proof that is

inconsistent with the FLSA’s text and that threatens

employers with significant and unanticipated

overtime liabilities. Amici seek to ensure that federal

courts properly apply the burden of proof under the

applicable statute and that they do so uniformly

across the Circuits.

INTRODUCTION AND SUMMARY OF

ARGUMENT

This case presents a clean opportunity to resolve

an entrenched split on an important and recurring

employment law issue under the Fair Labor

Standards Act. As the Petition amply demonstrates,

the decision below contradicts this Court’s precedents,

conflicts with the decisions of numerous other

Circuits, and misinterprets the FLSA. As a result,

employers operating in Maryland, North Carolina,

South Carolina, Virginia, and West Virginia are

currently held to a higher standard than those in other

jurisdictions. That disparity is alone enough to

warrant review. But it is all the more troubling here,

where it cuts to the central issue of what burden of

4

proof exists in every case concerning one of the FLSA’s

numerous exemptions.

The decision below not only entrenches a circuit

split, but it is demonstrably erroneous. According to

the Fourth Circuit, employers must “prove their

entitlement” to an exemption from the FLSA’s

overtime compensation requirements “by clear and

convincing evidence.” Pet.App.15a. Yet the default

rule in civil litigation has always been the

preponderance of the evidence standard, and there is

no legal reason to apply a heightened standard here.

Nothing in the text of the FLSA nor the circumstances

of a civil action for monetary damages warrants a

departure. At least six other Circuits have reached

that conclusion and rejected the Fourth Circuit’s

outlier approach.

By adopting an improper heightened standard, the

decision below forces the thousands of employers

operating in the Fourth Circuit to satisfy a legal

regime that Congress never enacted. As this Court

has repeatedly recognized, the burden of proof can

have a profound impact on the outcome of civil

litigation. See, e.g., Speiser v. Randall, 357 U.S. 513,

525 (1958) (noting that “where the burden of proof lies

may be decisive of the outcome”). And research into

the “clear and convincing evidence” standard backs up

this commonsense conclusion. One recent study

shows that fact finders are significantly more likely to

rule against a party carrying a clear and convincing

evidence standard compared to a preponderance

standard. See David L. Schwartz & Christopher B.

Seaman, Standards of Proof in Civil Litigation: An

Experiment from Patent Law, 26 Harv. J.L. & Tech.

5

429, 451–69 (2013). And years of experience within

the Fourth Circuit demonstrate that its heightened

standard poses a formidable legal obstacle compared

to the preponderance standard.

That error has profound real-world impact. The

Fourth Circuit’s mistaken rule will often prove

outcome-determinative for businesses operating in

that jurisdiction. It also reduces courts’ ability to weed

out meritless cases at the summary judgment stage—

by skewing the burden of proof in an already factintensive analysis. And it will invite plaintiffs to

forum shop in cases against multistate businesses.

Those distortions, in turn, create competitive

imbalances based on no more than geographic

happenstance, and impose significant costs on

employers.

This circuit split will not resolve without this

Court’s intervention. The Fourth Circuit has declined

numerous en banc opportunities to change course.

And the impact of the Fourth Circuit’s error cannot be

overstated.

Naturally, businesses make staffing

decisions based in part on applicable legal regimes.

Uncertainty over whether an employee falls under the

FLSA’s coverage may upset business expectations,

resulting in less capital investment into a company’s

workforce. The prospect of cumbersome and costly

litigation may also chill commercial development and

create a perverse disincentive for employers to either

shrink their workforces or hire employees outside of

the Fourth Circuit. These problems undermine the

FLSA’s goal of balancing fairness with practicality,

the Act’s laudable aim to increase the number of

Americans employed, and this Court’s interpretation

6

of the statute. This Court should grant certiorari and

reverse.

ARGUMENT

I.

This Case Cleanly Presents An Important

And Recurring Question That Has Divided

The Circuits.

The Fourth Circuit’s decision confirms that it is an

outlier with respect to an employer’s efforts to show

that a category of jobs falls under an exemption to the

FLSA. The FLSA established a federal minimum

wage for covered employees and set forth overtime

compensation requirements. See 29 U.S.C. §§ 206,

207. The overtime provisions require an employer to

pay employees at least 150% of their hourly pay rate

when they work more than 40 hours in a week. Id. §

207(a)(1). But Congress identified certain employees

who warrant exemptions either from federal

minimum wage or the overtime requirements. See id.

§ 213(a)-(b). These exemptions were meant to provide

employers with a straightforward “safe harbor” from

overtime liability for specified employees. Anani v.

CVS RX Servs., Inc., 730 F.3d 146, 148 (2d Cir. 2013).

Specifically, the FLSA exempted 19 different

categories of jobs from the minimum wage and

maximum hour requirements. Some of those job

categories are fairly specific (e.g., fishermen, software

engineers, and baseball players). See id. § 213(a)(5),

(a)(17), (a)(19).

Other exemptions apply more

generally and require interpretation. For example,

the FLSA exempts “outside salesm[e]n,” id.

§ 213(a)(1), which this Court has described as

individuals who make sales and work for the most part

7

outside of their employer’s principal place of business,

see Christopher v. SmithKline Beecham Corp., 567

U.S. 142, 148 (2012). Congress exempted some of

these professions because “the type of work they

performed was difficult to standardize to any time

frame and could not be easily spread to other workers

after 40 hours in a week.” 69 Fed. Reg. 22122, 22124

(Apr. 23, 2004). The decision to provide employers

with exemptions also aligns with the FLSA’s

recognition that the statute’s protections are often

unnecessary and even ill-advised where employers

and employees alike would benefit from alternative

compensation practices. See 29 U.S.C. § 213(a).

Whether the FLSA exempts an employee from

coverage is frequently litigated. See 18th Annual

Workplace Class Action Litigation Report 25 (2022),

https://bit.ly/3PMFamP (“By the numbers, FLSA

collective action litigation filings in 2021 far outpaced

other types of employment-related class action filings

because virtually all FLSA lawsuits are filed on a

collective basis.”). The federal courts have resolved

dozens of lawsuits since just August of this year

presenting the question whether an employee is

exempt from FLSA coverage. See Orbetta v. Dairyland

USA Corp., 2023 WL 6386921, at *9 (S.D.N.Y. Sept.

30, 2023); Esquivel v. Lima Restaurant Corp., 2023

WL 6338666, at *7 (E.D.N.Y. Sept. 29, 2023);

Hendricks v. Total Quality Logistics, LLC, 2023 WL

6255723, at *5 (S.D. Ohio Sept. 26, 2023); Hairgrove v.

City of Salisbury, 2023 WL 5985349, at *9 (M.D.N.C.

Sept. 14, 2023); Echevarria v. ABC Corp., 2023 WL

5880417, at *4 (E.D.N.Y. Sept. 11, 2023); United

States Dep’t of Lab. v. Wireless Boys, LLC, 2023 WL

5509560, at *12 (N.D. Ohio Aug. 25, 2023); Stark v.

8

ABC Pediatric Clinic, P.A., 2023 WL 5961657, at *4–5

(S.D. Tex. Aug. 25, 2023); Mondragon v. Sushitobox,

2023 WL 5370245, at *2 n.2 (D.N.J. Aug. 22, 2023);

Heras v. Metropolitan Learning Institute, Inc., 2023

WL 5810784, at *5–11 (E.D.N.Y. Aug. 18, 2023);

Manteuffel v. HMS Host Tollroads, Inc., 2023 WL

5287722, at *2–6 (6th Cir. Aug. 17, 2023); Covington

v. FMC & Assocs., LLC, 2023 WL 5133184, at *3–5

(D.D.C. Aug. 10, 2023); Williams v. Core Energy, Inc.,

2023 WL 5677543, at *2 (S.D. Fla. Aug. 3, 2023);

Chouinard v. Perfection Snacks, 2023 WL 4980939, at

*5 (E.D. Pa. Aug. 3, 2023); Luna Vanegas v. Signet

Builders, Inc., 2023 WL 4926237, at *1 (W.D. Wis.

Aug. 2, 2023).

Because these actions are frequently brought on

behalf of classes of employee, see Tyson Foods, Inc. v.

Bouaphakeo, 577 U.S. 442, 448 (2016) (“Section 216 is

a provision of the FLSA that permits employees to sue

on behalf of ‘themselves and other employees similarly

situated.’” (quoting 29 U.S.C. § 216(b))), any decision

concerning an FLSA exemption can have significant

financial consequences.

Employers may end up

saddled with liability in the form of backpay, but also

additional penalties, for certain FLSA violations. See

29 U.S.C. § 216(b); id. § 215(a)(3). The figures at stake

can be staggering. For instance, in Su v. E. Penn Mfg.

Co., No. CV 5:18-cv-01194 (E.D. Pa. May 16, 2023), a

jury recently awarded employees more than $22

million in overtime compensation. And settlements

routinely exceed $1 million. See, e.g., Moodie v.

Kiawah Island Inn Co., LLC, 2016 WL 11724398

(D.S.C. Dec. 16, 2016).

9

Given the potential for massive monetary awards,

FLSA litigation has proven attractive to plaintiffs’

lawyers.

Under the FLSA, employees may file

collective actions in any district where their employer

can be served with process. See 29 U.S.C. § 216(b). As

a result, employers that operate nationwide will often

have employees domiciled and working within the

Fourth Circuit’s borders. Savy plaintiffs will file their

FLSA actions within the Fourth Circuit to take

advantage of the heightened clear and convincing

evidence standard. See 18th Annual Workplace Class

Action

Litigation

Report

26

(2022),

https://bit.ly/3PMFamP (“Virtually all FLSA lawsuits

are filed as collective actions; therefore, these filings

represent the most significant exposure to employers

in terms of any workplace laws.”).

It thus becomes all the more vital that these cases

are litigated under the appropriate standard of proof,

lest employers who make good faith judgments about

the requirements of the law later find themselves at

risk of potentially crushing liability in a cherrypicked

forum. See William T. Salzer, Exploring New Routes

To Early Settlement In Employment Law Cases,

Aspatore, 2013 WL 153852, at *4 (2013) (“The past

couple of years have resulted in an explosion of FLSA

class action litigation that creates tremendous

expense and exposure for employers.”). This Court

has frequently granted certiorari to resolve cases

implicating the FLSA in order to eliminate the acute

risk of forum shopping. See Encino Motorcars, LLC v.

Navarro, 579 U.S. 211 (2016); Christopher v.

SmithKline Beecham Corp., 567 U.S. 142 (2012); Long

Island Care At Home, Ltd. v. Coke, 551 U.S. 158

10

(2007). But the clean circuit split presented here

makes this petition all the more certworthy.

As Petitioners have explained, the Fourth Circuit’s

heightened standard conflicts with the approach

embraced by six other Circuits. See Herrera v. TBC

Corp., 18 F. Supp. 3d 739, 741 (E.D. Va. 2014)

(cataloging the split of authority). In the Fifth, Sixth,

Seventh, Ninth, Tenth, and Eleventh Circuits, courts

resolve whether an employer has proven an FLSA

exemption under the preponderance of the evidence

standard. See Faludi v. U.S. Shale Sols., L.L.C., 950

F.3d 269, 273 (5th Cir. 2020); Renfro v. Indiana

Michigan Power Co., 497 F.3d 573, 576 (6th Cir. 2007);

Yi v. Sterling Collision Centers, Inc., 480 F.3d 505, 507

(7th Cir. 2007); Coast Van Lines v. Armstrong, 167

F.2d 705, 707 (9th Cir. 1948); Lederman v. Frontier

Fire Prot., Inc., 685 F.3d 1151, 1158 (10th Cir. 2012);

Dybach v. State of Fla. Dep’t of Corr., 942 F.2d 1562,

1566 n.5 (11th Cir. 1991). And the Fourth Circuit has

repeatedly declined requests, including in the

proceedings below, to overturn this heightened

standard through the en banc process.

See

Pet.App.1a-2a; see also Desmond v. PNGI Charles

Town Gaming, L.L.C., 564 F.3d 688, 691 n.3 (4th Cir.

2009) (highlighting the Fourth Circuit’s entrenched

precedent and noting that a “panel cannot overrule the

decision of a prior panel”). This clearly entrenched

circuit split on a significant issue warrants this

Court’s review.

Indeed, tying up employers in

litigation over the technical details of an employee’s

job responsibilities turns the FLSA on its head.

11

II.

The Fourth Circuit’s Outlier Approach

Undermines The FLSA’s Design And Poses A

Threat To American Business.

A. The Fourth Circuit’s Heightened Burden

Of Proof Thwarts The FLSA’s Legislative

Design.

The Fourth Circuit decision is not only an outlier,

but it is also wrong. The Fourth Circuit’s heightened

standard conflicts with this Court’s express rejection

of efforts to construe the FLSA narrowly against the

employer’s interest. In Encino Motorcars, LLC v.

Navarro, 138 S. Ct. 1134 (2018), for example, this

Court refused to apply a narrowing construction to the

FLSA’s overtime exemptions and instead held that

courts “have no license to give the exemption[s]

anything but a fair reading.” Id. at 1142. Rather than

putting a thumb on the scale for either party, a “fair

reading” requires the “straight-up weighing of the

evidence” through the preponderance of the evidence

standard. Leflar v. Target Corp., 57 F.4th 600, 604

(8th Cir. 2023). Doing so will further the legislature’s

intent, as “Congress intended . . . to achieve a uniform

national policy of guaranteeing compensation for all

work or employment engaged in by employees covered

by the Act.” Jewell Ridge Coal Corp. v. Local No. 6167,

United Mine Workers of Am., 325 U.S. 161, 167 (1945)

(citation omitted). This “policy of uniformity in the

application of the provisions of the Act” can only be

achieved with “equality of treatment,” including the

applicable burden of proof. Brooklyn Sav. Bank v.

O’Neil, 324 U.S. 697, 710 (1945).

That Congress has specified in other statutes a

heightened burden of proof buttresses the conclusion

12

that a preponderance standard should apply to the

circumstances here. In various statutes, Congress has

prescribed the applicable burden of proof as well as

dictated the party that bears it. In some of those laws,

Congress has expressly required that a party must

prove an issue by clear and convincing evidence. See

15 U.S.C. § 6604 (“[T]he defendant shall not be liable

for punitive damages unless the plaintiff proves by

clear and convincing evidence that the applicable

standard for awarding damages has been met.”); 18

U.S.C. § 4243 (“[A] person . . . has the burden of

proving by clear and convincing evidence that his

release would not create a substantial risk of bodily

injury to another person . . . .”); 49 U.S.C. § 30171

(“[N]o investigation . . . shall be conducted if the

employer demonstrates, by clear and convincing

evidence, that the employer would have taken the

same unfavorable personnel action in the absence of

that behavior.”). Congress did not take such a step in

the FLSA.

Where, as here, Congress has not specified a

burden of proof on a civil matter, the long-recognized

default rule is that the matter must be proven by a

preponderance of the evidence. See Steadman v. SEC,

450 U.S. 91, 101 n.21 (1981). Unless some special

“basis” exists for “a clear and convincing standard of

proof,” the standard is the preponderance of the

evidence. Halo Elecs., Inc. v. Pulse Elecs., Inc., 579

U.S. 93, 107 (2016). And, when deciding upon the

applicable burden, courts must always remain

mindful that a chosen standard “indicate[s] the

relative importance attached to the ultimate decision.”

Addington v. Texas, 441 U.S. 418, 423 (1979). Thus, a

clear and convincing evidence standard applies only

13

“where particularly important individual interests or

rights are at stake.”

Herman & MacLean v.

Huddleston, 459 U.S. 375, 389 (1983).

Those circumstances have proven rare.

See

Santosky v. Kramer, 455 U.S. 745, 769 (1982)

(termination of parental rights); Woodby v.

Immigration & Naturalization Serv., 385 U.S. 276,

285 (1966) (deportability); Chaunt v. United States,

364 U.S. 350, 353 (1960) (setting aside a

naturalization decree). Courts seldom impose the

heightened standard because it “expresses a

preference for one side’s interests,” Herman &

MacLean, 459 U.S. at 390, and it conflicts with the

presumption that the preponderance of the evidence

standard applies in civil matters, see id. at 388. That

explains why this Court has clarified that the

“imposition of even severe civil sanctions” begets just

the preponderance of the evidence standard. Id. at

389–90; see also Faragher v. City of Boca Raton, 524

U.S. 775, 807 (1998) (holding that the preponderance

standard applies to employer’s affirmative defense).

The FLSA was enacted against these background

principles, and they apply here with full force.

Nothing about the FLSA warrants a departure. Not

the FLSA’s statutory text, nor the regulations

enforcing it, nor general legal principles “justif[y]

imposing a requirement of proving entitlement to [an

FLSA] exemption by ‘clear and affirmative evidence.’”

Yi v. Sterling Collision Centers, Inc., 480 F.3d 505, 506

(7th Cir. 2007). Rather, the FLSA is silent on the

applicable burden of proof. See Lederman v. Frontier

Fire Prot., Inc., 685 F.3d 1151, 1158 (10th Cir. 2012);

see also Grogan v. Garner, 498 U.S. 279, 286 (1991)

14

(noting that the silence in a statute is inconsistent

with the view that Congress intended to require a

heightened standard of proof). 2

The question whether a particular employee

qualifies for overtime compensation under the FLSA

is also far afield from the kind of core individual rights

involving speech, life, and liberty for which this Court

has imposed a heightened burden. See New York

Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)

(requiring public officials to prove actual malice to set

forth a viable claim of defamation); Washington v.

Glucksberg, 521 U.S. 702, 719–20 (1997) (explaining

that the Due Process Clause “provides heightened

protection against government interference with

certain fundamental rights and liberty interests”);

United States v. Virginia, 518 U.S. 515 (1996)

(applying intermediate scrutiny to gender-based

classifications under equal protection). Thus, the

scope of the FLSA’s exemptions does not rise to the

level of “particularly important individual interests or

rights” that have justified imposition of a heightened

burden. Herman & MacLean, 459 U.S. at 389–91.

A clear and convincing standard is moreover at

odds with the FLSA’s design. As this Court has

explained, “the FLSA overtime rules encourage

employers to hire more individuals who work 40–hour

weeks, rather than maintaining a staff of fewer

employees who consistently work longer hours.”

Encino Motorcars, 138 S. Ct. at 1144 n.3. But

2 And there is likewise nothing in the legislative history that

speaks to the imposition of a heightened burden. See Lederman,

685 F.3d at 1158.

15

increasing the number of employees who will fall

outside an exception—by ratcheting up the

defendant’s burden of proof—is likely to cause the

opposite downstream effect.

It will reduce the

capacity of businesses—especially small businesses—

to grow their workforce and “spread employment.”

Overnight Motor Transp. Co. v. Missel, 316 U.S. 572,

577–78 (1942), superseded on other grounds by statute

as stated in Trans World Air Lines, Inc. v. Thurston,

469 U.S. 111, 128 n.22 (1985).

B. The Fourth Circuit’s Heightened Burden

Of Proof Has A Profound Impact On The

Business Community.

The burden of proof in FLSA cases is not an

academic exercise.

Rather, it is often outcome

determinative. That is especially so in this context,

where the application of an exemption is a factintensive inquiry based on the scope of an employee’s

duties. See 29 C.F.R. § 541.2 (stating that “[a] job title

alone is insufficient to establish the exempt status of

an employee”); see also Walton v. Greenbrier Ford,

Inc., 370 F.3d 446, 452–53 (4th Cir. 2004) (same); Vela

v. City of Houston, 276 F.3d 659, 677 (5th Cir. 2001).

Thus, by ratcheting up the burden of proof, the Fourth

Circuit decreases the likelihood that employers will be

able to rely on the FLSA’s exemptions.

The very nature of the two standards bears this

out. The “preponderance-of-the-evidence standard

involves a straight-up weighing of the evidence to

determine which side has the better of the argument.”

Leflar, 57 F.4th at 604; see Concrete Pipe & Prod. of

California, Inc. v. Constr. Laborers Pension Tr. for S.

California, 508 U.S. 602, 622 (1993). The clear and

16

convincing evidence standard, by contrast, requires

proof that “produces in the mind of the trier of fact a

firm belief or conviction as to the truth of the

allegations sought to be established.” Cruzan by

Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261,

285 n.11 (1990); California ex rel. Cooper v. Mitchell

Bros. Santa Ana Theater, 454 U.S. 90, 93 n.6 (1981).

Naturally, then, application of the clear and

convincing standard over the preponderance standard

can “dramatically alter” the outcome of a case. Griffin

v. Griffin, 916 N.W.2d 292, 299 n.8 (Mich. App. Ct.

2018); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S.

141, 160 (2001) (Breyer, J., dissenting) (noting the

material difference between the standards).

A recent study confirmed this intuitive

conclusion. A court may invalidate a patent if a

challenger proves the patent’s invalidity by clear and

convincing evidence. See Microsoft Corp. v. I4I L. P.,

564 U.S. 91, 97 (2011). 3

An academic study

determined that jurors “who received the clear and

convincing standard found the patent invalid less

often (27.1%) than those who received the

preponderance standard (38.3%).”

Schwartz &

Seaman, Standards of Proof in Civil Litigation at 459.

The researchers therefore concluded that “even after

holding all . . . other variables constant, the

preponderance standard correlated with an increase

in the odds ratio.” Id. at 461.

3 Notably, the Court has rested this conclusion on the text of

the Patent Act, which provides that patents are to be “presumed

valid,” 35 U.S.C. § 282, a term that had a “settled meaning in the

common law” including a “heightened standard of proof.”

Microsoft, 564 U.S. at 101–04.

17

The Fourth Circuit’s erroneous standard not only

skews the results in many FLSA cases, but it also

reduces the federal courts’ ability to adjudicate

meritless claims at early stages in the litigation. A

heightened burden on defendants, coupled with an

already fact-intensive analysis will frequently

preclude dismissal or summary judgment—and thus

send weak claims on to trial.

See Comment,

Controlling Smart-Phone Abuse: The Fair Labor

Standards Act’s Definition of “Work” in Non-Exempt

Employee Claims for Overtime, 58 U. Kan. L. Rev. 737,

748 (2010) (noting that the fact-intensive inquiry

increases “the potential for endless litigation at great

expense to [] compan[ies]”). That, in turn, increases

the pressure on employers to settle suits that would

fail at early stages in other Circuits. See Gretchen

Agena, What’s So ‘Fair’ About It?: The Need to Amend

the Fair Labor Standards Act, 39 Hous. L. Rev. 1119,

1131 (2002) (noting that “for employers with hundreds

or thousands of employees, the burden of engaging in

the kind of intensive, individualized determination

required to ensure compliance with the FLSA is

tremendous”). Meanwhile, trial is not a foregone

conclusion in the other Circuits that apply the correct

burden of proof. 4 As a result, employers within the

See, e.g., McCartt v. Kellogg USA, Inc., 139 F. Supp. 3d 843,

858 (E.D. Ky. 2015) (granting employer’s motion for summary

judgment where employee worked in a sales job); Lint v. Nw. Mut.

Life Ins. Co., 2010 WL 4809604, at *3 (S.D. Cal. Nov. 19, 2010)

(finding that a salesperson who spent around 20 percent of his

time meeting with clients or prospective clients outside of the

office qualified for the outside sales exemption); Perry v.

Randstad Gen. Partner (US) LLC, 2018 WL 2363979, at *4 (E.D.

Mich. May 24, 2018) (same); see also Puentes v. Siboney

Contracting Co., 2012 WL 5193417, at *8 (S.D. Fla. Oct. 19, 2012)

4

18

Fourth Circuit are forced into a more onerous and

costly legal regime, based on nothing more than the

vagaries of geography.

A number of decisions within the Fourth Circuit

illustrate how that Circuit’s distorted burden of proof

skews outcomes.

For instance, in Jackson v.

ReliaSource, Inc., 2017 WL 193294 (D. Md. Jan. 18,

2017), a former supervisor brought a lawsuit for

unpaid overtime against a small business. Id. at *4.

The employer provided evidence that the employee

“directed the work of teams of technicians, kept

timesheets, made travel arrangements for himself and

others, and prepared numerous reports” and therefore

was an exempt employee. Id. In response, the

employee stated that his work involved manual labor

as well as following the instructions of managers

above him. Id. at 5. The employee further disputed

the scope of his executive responsibilities, including

his role in hiring, firing, budgeting, and the like. See

id. The district court, while suggesting that the

employer would have prevailed under the

preponderance standard, denied summary judgment

because it could not say that the evidence was clear

and convincing. Id.

Chaplin v. SSA Cooper, LLC, 2017 WL 2618819

(D.S.C. June 16, 2017), similarly highlights the impact

of the Fourth Circuit’s erroneous standard. There, an

employee of a stevedoring company filed a lawsuit

arguing that his former employer had misclassified

(granting summary judgment to employer based on

administrative exemption despite employee’s contention that

discovery was incomplete).

19

him as exempt from the FLSA’s overtime protections.

Id. at *1. When evaluating the company’s evidence in

support of its motion for summary judgment, the court

recognized that “the FLSA’s ‘clear and convincing

evidence’ standard present[ed] a formidable

evidentiary burden for [the defendant] to overcome.”

Id. at *7 (emphasis added). Applying that heightened

standard, the court held “that a reasonable juror could

conclude that [the employer] ha[d] not proven by ‘clear

and convincing evidence’ that” the employee fell

outside of the FLSA’s coverage. Id.

Yuen v. U.S. Asia Com. Dev. Corp., 974 F. Supp.

515 (E.D. Va. 1997), is likewise illustrative. There, a

former employee of a “private consulting company”

filed a lawsuit claiming that her employer had

misclassified her as exempt from the FLSA. Id. at

517–18. The employer moved for summary judgment,

arguing that the former employee exercised discretion

and independent judgment on matters of consequence

and took on managerial responsibilities. Id. at 526.

The employee never disputed that these duties

represented a portion of her job responsibilities. Id.

But she claimed that her job was more “clerical” in

nature and that the managerial duties represented

just a small percentage of her work. Id. The court

denied the employer’s motion for summary judgment

because the employer failed to satisfy “the clear and

convincing burden of proof.” Id. at 527 (internal

quotations omitted). The court recognized that the

“record evidence present[ed] a close case,” but “the

high burden of proof on an employer seeking to classify

an employee as exempt under FLSA tips the balance

in favor of a denial of summary judgment.” Id. at 527

n.15 (emphasis added).

20

As these cases demonstrate, the Fourth Circuit’s

heightened standard poses an unwarranted threat to

businesses—especially small businesses—that rely on

employees with flexible roles in an ever-increasing gig

economy. Consider the role of salespeople. The sales

industry is massive and critical to our Nation’s

economy. By offering flexible earning opportunities to

millions of Americans, the industry has long been an

entrepreneurial and economic powerhouse, driving

innovation and commercial growth. As Congress

recognized when enacting the FLSA and its “outside

salesman” exemption, the salesperson’s role does not

fit neatly within the FLSA’s standard hourly wage and

overtime requirements.

Indeed, this Court has

recognized that many salespeople “‘earn salaries well

above the minimum wage’ and enjoy[] other benefits

that ‘set them apart from nonexempt workers entitled

to overtime pay.’” Christopher, 567 U.S. at 166

(quoting 69 Fed. Reg. 22,124). The outside salesman

exemption thus promotes fairness and practicality.

But the Fourth Circuit’s heightened standard

undermines those principles.

If left undisturbed, the Fourth Circuit’s precedent

will continue to result in disparate treatment of

similarly situated salespeople, other gig workers, and

businesses based on no more than geographic

happenstance. It will also likely result in businesses,

especially smaller ones, within the Circuit either

cutting back on the number of employees or

outsourcing jobs to other parts of the country. Indeed,

small businesses often require employees to take on a

variety of responsibilities. See Business Structure,

NFIB Small Business Poll at 6 (2004),

https://bit.ly/3tluhAO (noting that few small

21

businesses employ specialists to take on a single role).

For instance, almost half of all small businesses

process their payroll in-house and often rely on an

employee with several responsibilities to do so. See

NFIB National Small Business Poll, Tax Complexity

and the IRS at 1 (2017), https://bit.ly/3rxMieK; NFIB

Tax Survey, NFIB 2021 Tax Survey: Summary of

Findings at 16 (2021), https://bit.ly/3ZKYSnf (same).

Categorizing those employees under the FLSA will

prove fact-intensive and ratcheting up the burden of

proof will skew outcomes against those businesses—

who will then be forced to choose between expending

resources on overtime or hiring more employees. That

result hardly furthers the FLSA’s goal of encouraging

employees to hire more workers.

Finally, and as noted above, the Fourth Circuit’s

heightened standard not only threatens employers

headquartered within its geographic bounds, but it

also raises the risk of forum shopping in multistate

cases. Employers that operate nationwide will often

have employees domiciled and working within the

Fourth Circuit’s borders. Plaintiffs will file their

FLSA collective actions within the Fourth Circuit to

take advantage of the heightened clear and convincing

evidence standard. See 29 U.S.C. § 216(b). This Court

should bring the Circuits into harmony to eliminate

the incentive for such overt forum shopping. This

Court has resolved in the past to discourage forum

shopping. See Hanna v. Plumer, 380 U.S. 460, 468

(1965) (noting that the Court seeks to promote the

“discouragement of forum-shopping”); Ferens v. John

Deere Co., 494 U.S. 516, 527 (1990). It should do the

same here.

22

CONCLUSION

For the foregoing reasons, amici curiae respectfully

urge this Court to grant the petition for certiorari.

Respectfully submitted,

STEPHANIE A. MALONEY

JORDAN L. VON BOKERN

U.S. CHAMBER

LITIGATION CENTER

1615 H STREET, NW

WASHINGTON, DC 20062

(202) 463-5337

Counsel for the Chamber

of Commerce of the

United States of America

STEVEN A. ENGEL

MICHAEL H. MCGINLEY

Counsel of Record

JUSTIN W. AIMONETTI

DECHERT LLP

1900 K Street, NW

Washington, DC 20006

(202) 261-3378

michael.mcginley@dechert.com

ANTHONY R. JADICK

CIRA CENTRE

DECHERT LLP

2929 Arch Street

Philadelphia, PA 19104

Counsel for Amici Curiae

October 10, 2023