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

Supreme Court briefAug 14, 2024

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No. 23-217

IN THE

Supreme Court of the United States

E.M.D. SALES, INC., ET AL.,

Petitioners,

FAUSTINO SANCHEZ CARRERA, ET AL.,

Respondents.

ON A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF AMICUS CURIAE

NEW ENGLAND LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Counsel for Amicus Curiae

Benjamin G. Robbins

Counsel of Record

Daniel B. Winslow, President

New England Legal Foundation

333 Washington Street, Suite 850

Boston, MA 02108

(617) 695-3660

brobbins@newenglandlegal.org

August 14, 2024

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................iii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT..................................... 2

ARGUMENT ............................................................... 4

AN EMPLOYER SHOULD BE ABLE

TO PROVE THAT AN EMPLOYEE IS

EXEMPT

FROM

RECEIVING

OVERTIME PAY UNDER THE FAIR

LABOR STANDARDS ACT BY A

MERE PREPONDERANCE OF THE

EVIDENCE,

AND NOT BY A

HEIGHTENED

STANDARD

PROOF. ............................................................. 4

The FLSA’s 34 Exemptions To

The Overtime-Pay Requirement

Strike A Balance Between The

Parties’ Competing Interests On

The Issue, And Only A MerePreponderance Standard Would

Preserve

That

Legislative

Balance. .................................................. 4

Clear-And-Convincing

Standard

Proof

Would

Contravene That Legislative

Balance, By Favoring The

Exempt Employee’s Interests

Over The Employer’s Interests. ............ 8

CONCLUSION .......................................................... 10

TABLE OF AUTHORITIES

CASES

Addington v. Texas,

441 U.S. 418 (1979) ................................................ 9

Christopher v. SmithKline Beecham Corp.,

567 U.S. 142 (2012) ............................................ 6, 7

Cooper v. Oklahoma,

517 U.S. 348 (1996) ................................................ 8

Encino Motorcars, LLC v. Navarro,

584 U.S. 79 (2018) .............................................. 5, 9

Grogan v. Garner,

498 U.S. 279 (1991) .................................5, 6, 7, 8, 9

Herman & MacLean v. Huddleston,

459 U.S. 375 (1983) ............................................ 6, 9

Walling v. Helmerich & Payne,

323 U.S. 37 (1944) .................................................. 6

STATUTES

29 U.S.C. § 201 et seq. ................................................ 4

29 U.S.C. § 213(a)................................................... 4, 6

29 U.S.C. § 213(a)(1) .............................................. 4, 6

29 U.S.C. § 213(b)....................................................... 4

iii

OTHER AUTHORITIES

Report of the Minimum Wage Study Commission,

Volume I (May 1981) .............................................. 7

INTEREST OF AMICUS CURIAE

Amicus

curiae

New

England

Legal

Foundation (NELF) is a nonprofit, public interest

law firm, incorporated in Massachusetts in 1977 and

headquartered in Boston.1 NELF’s membership

consists of corporations, law firms, individuals, and

others who believe in its mission of promoting

inclusive economic growth in New England,

protecting the free enterprise system, and defending

economic rights. NELF’s members and supporters

include a cross-section of large and small businesses

and other organizations from all parts of the

Commonwealth, New England, and the United

States.

NELF is committed to an interpretation of

employment statutes that preserves the legislative

balance between the competing economic interests of

the employer and the employee. Amicus is also

committed to upholding the principle of stare decisis,

under which a lower court should apply this Court’s

rules of decision that are instrumental in deciding

the legal issue in a case.

For these and other reasons discussed below,

NELF believes that its brief will assist the Court in

deciding whether an employer may prove that an

employee is exempt from overtime pay under the

1 Pursuant to Supreme Court Rule 37.6, NELF states that no

counsel for a party authored NELF’s amicus brief, in whole or

in part, and that no person or entity, other than amicus, made

a monetary contribution to the preparation or submission of the

brief.

Fair Labor Standards Act by a mere preponderance

of the evidence, or by clear and convincing evidence.

SUMMARY OF ARGUMENT

An employer should be able to prove that an

employee is exempt from receiving overtime pay

under the Fair Labor Standards Act (FLSA) by a

mere preponderance of the evidence, and not by a

heightened standard of clear and convincing

evidence. The FLSA’s 34 exemptions substantially

restrict the right to overtime pay, while Congress

has remained silent on the applicable standard of

proof. This silence is inconsistent with an intent to

require a heightened standard of proof.

The FLSA codifies a considered legislative

compromise on the issue of overtime pay. While

Congress has favored employees’ interests with the

right to receive overtime pay, Congress has also

favored employers’ interests with numerous

exemptions restricting that right. Only a merepreponderance standard would preserve that

legislative balance of competing interests, by giving

virtually equal weight to the parties’ respective

interests in a correct decision on the issue of

overtime pay.

The FLSA’s exemptions reflect the legislative

judgment that the remedial purposes underlying the

overtime-pay requirement are ill suited to entire

industries and categories of employees. Congress

has evidently determined that the employer’s

economic interests outweigh the exempt employee’s

interests on the issue of overtime pay. Only a mere-

preponderance standard would preserve this

legislative judgment, by allocating the risk of an

erroneous court judgment on the issue of overtime

pay nearly equally between the employer and the

employee.

By contrast, a clear-and-convincing standard

would contravene Congress’s balanced treatment of

overtime pay, by placing the risk of an erroneous

judgment predominately on the employer’s

shoulders. As a result, a heightened evidentiary

standard would favor the interest in awarding

overtime pay even to the exempt employee, at the

employer’s unwarranted expense. The FLSA’s 34

exemptions to overtime pay should defeat this

skewed allocation of risks.

Because a clear-and-convincing standard

expresses a preference for one side’s interests, the

Court will not apply that standard to a private

monetary dispute, unless “particularly important

individual interests or rights are at stake.” But the

FLSA’s numerous exemptions, along with Congress’s

silence on the issue, indicate that Congress did not

conceive of overtime pay in that way. In any event,

if the right to overtime pay is “particularly

important,” so are the FLSA’s 34 exemptions that

substantially restrict that right. Only a merepreponderance standard would preserve this

legislative balance of competing important interests.

ARGUMENT

AN EMPLOYER SHOULD BE ABLE TO

PROVE THAT AN EMPLOYEE IS

EXEMPT FROM RECEIVING OVERTIME

PAY

UNDER

THE

FAIR

LABOR

STANDARDS

ACT

MERE

PREPONDERANCE OF THE EVIDENCE,

AND

NOT

HEIGHTENED

STANDARD OF PROOF.

The FLSA’s 34 Exemptions To The

Overtime-Pay Requirement Strike

A Balance Between The Parties’

Competing Interests On The Issue,

And Only A Mere-Preponderance

Standard Would Preserve That

Legislative Balance.

An employer should be able to prove that an

employee is exempt from receiving overtime pay

under the Fair Labor Standards Act of 1938 (FLSA),

29 U.S.C. § 201 et seq., by a mere preponderance of

the evidence, and not by a heightened standard of

clear and convincing evidence. This is because the

FLSA contains 34 exemptions that exclude entire

industries and categories of employees from the right

to receive overtime pay,2 while Congress has

remained silent on the applicable standard of proof.

“This silence is inconsistent with the view that

See 29 U.S.C. § 213(a) (containing 13 exemptions from

minimum wage and maximum weekly hour requirements),

§ 213(b) (containing 21 exemptions from maximum hour

requirements). At issue in this case is the exemption for “any

employee employed in a bona fide executive, administrative, or

professional capacity . . . or in the capacity of outside

salesman.” 29 U.S.C. § 213(a)(1).

Congress intended to require a special, heightened

standard of proof.” Grogan v. Garner, 498 U.S. 279,

286 (1991) (mere-preponderance standard, not

clear-and-convincing standard, applied to creditor in

bankruptcy seeking to prove that debt was

nondischargeable under one of many statutory

exceptions to general policy of dischargeability of

debts under Bankruptcy Code).

The FLSA codifies a considered legislative

compromise on the issue of overtime pay.

“Legislation is, after all, the art of compromise, the

limitations expressed in statutory terms often the

price of passage.”

Encino Motorcars, LLC v.

Navarro, 584 U.S. 79, 89 (2018) (cleaned up). While

Congress has favored employees’ interests with the

right to receive overtime pay, Congress has also

favored employers’ interests with numerous

exemptions restricting that right.

“Those

exemptions are as much a part of the FLSA’s

purpose as the overtime-pay requirement [itself].”

Id., 584 U.S. at 90 (rejecting narrow-construction

principle for interpreting FLSA’s exemptions).

The FLSA thereby strikes a balance between

the competing interests of the employer and the

employee with respect to overtime pay. Only a merepreponderance standard would preserve that

legislative balance, by giving virtually equal weight

to the parties’ respective interests in a correct

decision on the issue. “[A] standard of proof serves

to allocate the risk of error between the litigants

. . . . A preponderance-of-the-evidence standard

allows both parties to share the risk of error in

roughly equal fashion. . . . Any other standard

expresses a preference for one side’s interests.”

Herman & MacLean v. Huddleston, 459 U.S. 375,

390 (1983) (cleaned up) (emphasis added). See also

Grogan, 498 U.S. at 286 (“Because the

preponderance-of-the-evidence standard results in a

roughly equal allocation of the risk of error between

litigants, we presume that this standard is

applicable in civil actions between private

litigants.”).

Indeed, the FLSA’s exemptions reflect the

legislative judgment that the remedial purposes

underlying the overtime-pay requirement--i.e., as an

incentive for employers to hire more employees, and

as compensation for a long work week3--are ill suited

to several industries and categories of employees.

See Christopher v. SmithKline Beecham Corp., 567

U.S. 142, 166 (2012) (two-fold rationale for overtime

pay does not apply to employees falling under

exemption at issue, 29 U.S.C. § 213(a)(1),4 because

those employees are generally well-compensated and

they perform non-standardized work that cannot be

spread easily to other employees).5 See also Report

See Walling v. Helmerich & Payne, 323 U.S. 37, 40 (1944)

(“[T]he Congressional purpose in enacting Section [207(a)] was

twofold:

(1) to spread employment by placing financial

pressure on the employer through the overtime pay

requirement . . . ; and (2) to compensate employees for the

burden of a workweek in excess of the hours fixed in the Act.”).

4 That

exemption excludes from overtime pay “any employee

employed in a bona fide executive, administrative, or

professional capacity . . . or in the capacity of outside

salesman.” 29 U.S.C. § 213(a)(1).

of the Minimum Wage Study Commission, Volume I,

at 117-120 (May 1981) (discussing additional reasons

for FLSA’s exemptions, such as seasonal industries

hiring large numbers of short-term workers,

industries with fixed labor supplies, industries

inherently requiring work periods beyond 40 hours

per week, and employees earning wages from

commissions).

In short, Congress has evidently determined

that the employer’s economic interests outweigh the

exempt employee’s interests on the issue of overtime

pay. See Grogan, 498 U.S. at 287 (“The statutory

provisions governing nondischargeability reflect a

congressional decision to exclude from the general

policy of discharge certain categories of debts . . . .

Congress evidently concluded that the creditors’

interest in recovering full payment of debts in these

categories outweighed the debtors’ interest in a

complete fresh start.”) (emphasis added).

5 In particular,

[E]xempt employees perform[] a kind of work

that [i]s difficult to standardize to any time

frame and could not be easily spread to other

workers after 40 hours in a week, making

compliance with the overtime provisions

difficult and generally precluding the potential

job expansion intended by the FLSA’s time-anda-half overtime premium.

Christopher, 567 U.S. at 166 (cleaned up) (emphasis added).

Moreover, these exempt employees “typically earn[] salaries

well above the minimum wage and enjoy[] other benefits that

set them apart from the nonexempt workers entitled to

overtime pay.” Id. (cleaned up).

Only a mere-preponderance standard would

preserve this legislative judgment, by allocating the

risk of an erroneous court judgment on the issue of

overtime pay nearly equally between the employer

and the employee. See Grogan, 498 U.S. at 287

(“Requiring the creditor to establish by a

preponderance of the evidence that his claim is not

dischargeable reflects a fair balance between these

conflicting interests.”).

A Clear-And-Convincing Standard

Of Proof Would Contravene That

Legislative Balance, By Favoring

The Exempt Employee’s Interests

Over The Employer’s Interests.

By contrast, a clear-and-convincing standard

of proof would contravene Congress’s balanced

treatment of overtime pay, by placing the risk of an

erroneous

judgment

predominately

the

employer’s shoulders.

“The more stringent the

burden of proof a party must bear, the more that

party bears the risk of an erroneous decision.”

Cooper v. Oklahoma, 517 U.S. 348, 362 (1996)

(cleaned up). As a result, a heightened evidentiary

standard would favor the interest in awarding

overtime pay even to the exempt employee, at the

employer’s unwarranted financial expense.

The

FLSA’s 34 exemptions to overtime pay should defeat

this skewed allocation of risks. See Grogan, 498 U.S.

at 297 (“We think it unlikely that Congress, in

fashioning the standard of proof that governs the

applicability of these [exceptions to dischargeability],

would have favored the interest in giving

perpetrators of fraud a fresh start over the interest

in protecting victims of fraud,” under fraud exception

to dischargeability).

Because a clear-and-convincing standard

“expresses a preference for one side’s interests,”

Herman & MacLean, 459 U.S. at 390, the Court will

not apply that standard to “the typical civil case

involving a monetary dispute between private

parties,” Addington v. Texas, 441 U.S. 418, 423

(1979), “unless particularly important individual

interests or rights are at stake.” Grogan, 498 U.S. at

286 (cleaned up).

But the FLSA’s numerous

exemptions, along with Congress’s silence on the

issue, indicate that Congress did not conceive of

overtime pay as a “particularly important individual

interest or right” that warrants the special

protection of a heightened standard of proof. See

Grogan, 498 U.S. at 286-87 (“We are unpersuaded by

the argument that the clear-and-convincing

standard is required to effectuate the ‘fresh start’

policy of the Bankruptcy Code,” when Congress has

provided several exceptions to “the general policy of

discharge”).

Put differently, if the right to overtime pay is

“particularly important,” so are the FLSA’s 34

exemptions that substantially restrict that right.

“Those exemptions are as much a part of the FLSA’s

purpose as the overtime-pay requirement.” Encino

Motorcars, 584 U.S. at 90. Congress has given

nearly equal weight to the right to overtime pay and

its many exemptions. Only a mere-preponderance

standard would preserve this legislative balance of

competing important interests.

CONCLUSION

For the reasons stated above, NELF

respectfully requests that this Court reverse the

judgment of the Fourth Circuit.

Respectfully submitted,

NEW ENGLAND LEGAL FOUNDATION

By its attorneys,