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., ET AL., PETITIONERS

v.

FAUSTINO SANCHEZ CARRERA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

SEEMA NANDA

Solicitor of Labor

JENNIFER S. BRAND

Associate Solicitor

RACHEL GOLDBERG

Counsel for Appellate

Litigation

ERIN M. MOHAN

Senior Attorney

Department of Labor

Washington, D.C. 20210

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

AIMEE W. BROWN

Assistant to the Solicitor

General

CAROLINE D. LOPEZ

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether the standard of proof that employers must

satisfy to demonstrate the applicability of an exemption

to the Fair Labor Standards Act of 1938, 29 U.S.C. 201

et seq., is a preponderance of the evidence or clear and

convincing evidence.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Summary of argument ................................................................. 6

Argument:

The standard of proof for FLSA exemptions is a

preponderance of the evidence............................................... 8

A. Preponderance of the evidence is the default

standard for civil actions ................................................. 8

B. There is no basis for departing from the

preponderance-of-the-evidence standard in

deciding the applicability of FLSA exemptions ......... 13

C. Neither the Fourth Circuit nor respondents have

offered any basis for applying the clear-andconvincing-evidence standard ...................................... 16

Conclusion ................................................................................... 21

TABLE OF AUTHORITIES

Cases:

Addington v. Texas, 441 U.S. 418 (1979) ................... 8-10, 13

Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697 (1945)...................2

Chaunt v. United States, 364 U.S. 350 (1960)............... 10, 11

Clark v. J.M. Benson Co., 789 F.2d 282

(4th Cir. 1986)................................................................ 17, 18

Coast Van Lines, Inc. v. Armstrong, 167 F.2d 705

(9th Cir. 1948)...................................................................... 20

Day v. Mathews, 530 F.2d 1083 (D.C. Cir. 1976) ............... 12

Donovan v. United Video, Inc.,

725 F.2d 577 (10th Cir. 1984) ....................................... 17, 18

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

(11th Cir. 1991) .................................................................... 20

(III)

IV

Cases—Continued:

Page

Faludi v. Shale Solutions, LLC 950 F.3d 269

(5th Cir. 2020)...................................................................... 20

Encino Motorcars, LLC v. Navarro,

584 U.S. 79 (2018) .........................................................5, 19

Grogan v. Garner, 498 U.S. 279 (1991) ................. 9, 11-13, 16

Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167 (2009).............................................................. 16

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

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

Herman & MacLean v. Huddleston,

459 U.S. 375 (1983)........................................................... 8-11

Jones v. Virginia Oil Co., 69 Fed. Appx. 633

(4th Cir. 2003)........................................................................ 3

Lederman v. Frontier Fire Prot., Inc.,

685 F.3d 1151 (10th Cir. 2012) ...................................... 18-20

Legg v. Rock Prods. Mfg. Corp.,

309 F.2d 172 (10th Cir. 1962) ............................................. 18

Lilienthal’s Tobacco v. United States,

97 U.S. 237 (1878) ........................................................... 9, 16

Maxwell Land-Grant Case, 121 U.S. 325 (1887) ................ 10

McComb v. Farmers Reservoir & Irrigation Co.,

167 F.2d 911 (10th Cir. 1948), aff ’d,

337 U.S. 755 (1949).............................................................. 18

Microsoft Corp. v. i4i Ltd. P’ship, 564 U.S. 91 (2011) ....... 17

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977).............................................................. 12

Octane Fitness, LLC v. ICON Health & Fitness,

Inc., 572 U.S. 545 (2014) ................................................. 9, 12

Opp Cotton Mills v. Administrator of Wage & Hour

Div. of Dep’t of Labor, 312 U.S. 126 (1941) ...................... 15

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ...... 11-14

Renfro v. Indiana Mich. Power Co.,

497 F.3d 573 (6th Cir. 2007) ......................................... 19, 20

V

Cases—Continued:

Page

SEC v. C.M. Joiner Leasing Corp.,

320 U.S. 344 (1943)................................................................ 9

Santosky v. Kramer, 455 U.S. 745 (1982) ............... 10, 11, 14

Shockley v. City of Newport News,

997 F.2d 18 (4th Cir. 1993) ...........................................5, 17

Smith v. Porter, 143 F.2d 292 (8th Cir. 1944) ..................... 20

Steadman v. SEC, 450 U.S. 91 (1981) .................................. 16

United States v. Regan, 232 U.S. 37 (1914) .................... 9, 12

Winship, In re, 397 U.S. 358 (1970) ....................................... 8

Woodby v. INS, 385 U.S. 276 (1966) .............................. 10, 11

Yi v. Sterling Collision Ctrs., Inc.,

480 F.3d 505 (7th Cir. 2007) ......................................... 19, 20

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 551 et seq............ 16

Civil Rights Act of 1964, Pub. L. No. 88-352, Tit. VII,

78 Stat. 253-266 ............................................................. 12, 13

Fair Labor Standards Act of 1938, ch. 676,

52 Stat. 1060 (29 U.S.C. 201 et seq.) .................................... 1

§ 6, 52 Stat. 1062-1063 ..................................................... 14

§ 6(a)(1)-(3), 52 Stat. 1062-1063 ...................................... 14

§ 6(a)(4), 52 Stat. 1063 .................................................... 15

§ 7, 52 Stat. 1063-1064 ..................................................... 14

§ 8, 63 Stat. 915 ................................................................ 15

§ 8(a), 52 Stat. 1064 ......................................................... 14

§ 8(c), 52 Stat. 1064 .......................................................... 15

§ 8(d), 52 Stat. 1064 ......................................................... 15

§ 8(e), 52 Stat. 1065 ......................................................... 15

§ 13, 52 Stat. 1067-1068 ................................................... 14

§ 13(a)(1), 52 Stat. 1067 ................................................... 14

VI

Statutes and regulations—Continued:

Page

29 U.S.C. 204 ...................................................................... 1

29 U.S.C. 206 ...................................................................... 2

29 U.S.C. 207 ...................................................................... 2

29 U.S.C. 211(a) ................................................................. 1

29 U.S.C. 213(a) ................................................................. 2

29 U.S.C. 213(a)(1)............................................................. 2

29 U.S.C. 216(a) ................................................................. 1

29 U.S.C. 217 ...................................................................... 1

25 U.S.C. 2504(b)(2)(B) ......................................................... 16

29 U.S.C. 722(a)(3)(A)(ii)....................................................... 16

29 C.F.R.:

Section 541.500(a) .............................................................. 2

Section 541.500(a)(1) ......................................................... 2

Section 541.500(a)(2) ......................................................... 2

Miscellaneous:

2 Kenneth S. Broun et al., McCormick on Evidence

(Robert P. Mosteller ed., 8th ed. 2020) ............................. 11

83 Cong. Rec. 9256 (1938) ..................................................... 15

H.R. Conf. Rep. No. 2738, 75th Cong., 3d Sess. (1938) ..... 15

4 John Henry Wigmore, Treatise on the System

of Evidence in Trials at Common Law (1905) .................. 9

In the Supreme Court of the United States

No. 23-217

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

v.

FAUSTINO SANCHEZ CARRERA, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns the standard of proof that an employer must meet to establish that its employees fall

within an exemption to the federal minimum-wage and

overtime guarantees provided by the Fair Labor Standards Act of 1938 (FLSA), ch. 676, 52 Stat. 1060 (29

U.S.C. 201 et seq.). The Department of Labor administers and enforces the FLSA. 29 U.S.C. 204, 211(a),

216(c), 217. The United States accordingly has a substantial interest in this Court’s resolution of the question presented. At the invitation of the Court, the

United States filed a brief as amicus curiae at the petition stage of this case.

STATEMENT

1. Congress enacted the FLSA to protect workers

by establishing federal minimum-wage and overtime

(1)

2

guarantees for any hours worked over 40 in a workweek. See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706707 & n.18 (1945); see also 29 U.S.C. 206 (minimum wage);

29 U.S.C. 207 (overtime pay). The FLSA exempts several

categories of employees from its minimum-wage and overtime requirements. See 29 U.S.C. 213(a). As relevant

here, the FLSA exempts “any employee employed * * *

in the capacity of outside salesman.” 29 U.S.C. 213(a)(1).

The statute further authorizes the Secretary of Labor

to “define[] and delimit[]” the terms of this exemption

by regulation. Ibid.

Under the applicable regulations, an employee qualifies as an “outside salesman” if he meets two requirements. 29 C.F.R. 541.500(a). First, the employee’s “primary duty” must be “making sales” or “obtaining orders or contracts for services or for the use of facilities

for which a consideration will be paid by the client or

customer.” 29 C.F.R. 541.500(a)(1). Second, the employee must be “customarily and regularly engaged

away from the employer’s place or places of business in

performing such primary duty.” 29 C.F.R. 541.500(a)(2).

2. Petitioner EMD Sales is a “distributor of Latin

American, Caribbean, and Asian food products to chain

and independent grocery stores, operating in the Washington, D.C., metropolitan area.” Pet. App. 7a. Petitioner Elda Devarie is the Chief Executive Officer of the

company. Id. at 8a. Respondents are individuals who

worked for EMD Sales as sales representatives. Id. at

7a. In that role, respondents were assigned to a sales

route that included both chain and independent grocery

stores. Id. at 7a-8a. Each respondent was responsible

3

for managing inventory and submitting orders for additional products at the stores on his route. Ibid.

In 2017, respondents filed suit in the United States

District Court for the District of Maryland, alleging

that petitioners violated the FLSA by failing to pay

them overtime wages when they worked more than 40

hours per week. Pet. App. 8a. Petitioners did not dispute that respondents worked for more than 40 hours

per week, but argued that respondents were not entitled

to overtime wages because they fell within the outsidesales exemption of the FLSA. Id. at 8a-9a.

The parties filed cross-motions for summary judgment, in which they disputed (among other things) the

standard of proof imposed on petitioners to demonstrate the applicability of the outside-sales exemption.

Pet. App. 83a. The district court held that “longstanding Fourth Circuit precedent” requires petitioners to

prove that the exemption applies by “ ‘clear and convincing evidence.’ ” Ibid. (citing Jones v. Virginia Oil Co.,

69 Fed. Appx. 633, 636 (4th Cir. 2003) (per curiam)).

The court thereafter denied both parties’ motions for

summary judgment in relevant part, concluding that

genuine disputes of material fact existed. Id. at 84a-96a.

Following a nine-day bench trial, the district court

held that respondents did not qualify as outside sales

representatives and that petitioners were liable for the

failure to pay them overtime wages. Pet. App. 34a-55a.

The court distinguished between respondents’ activities

at independent stores and chain stores and determined

that while petitioners had “established by clear and convincing evidence that [respondents] make sales at independent stores,” petitioners “d[id] not carry the same bur-

4

den with respect to whether [respondents] make their

own sales at chain stores.” Id. at 48a.

The district court explained that at independent

stores, “[s]ales representatives are encouraged to open

new accounts and to increase both the type and quantity

of EMD products sold by existing accounts.” Pet. App.

40a. At chain stores, by contrast, the court found that

respondents’ role was more limited, as the chain stores’

managers were given “detailed diagrams indicating

where to place items on shelves, and plans for * * *

movable displays.” Id. at 38a. The evidence showed that

the type and quantity of products for the diagrammed

shelves and planned displays were negotiated by EMD’s

management and the chain stores’ corporate representatives—not the individual sales representatives. Ibid.

And the court heard testimony from corporate buyers

that “store managers are not permitted to deviate” from

the plan. Ibid.; see id. at 48a. Although there was also

testimony that sales representatives were regularly

able to sell additional quantities of products at chain

stores beyond those that management had negotiated,

the court found that such testimony “demonstrated that

there is a possibility—but not clear and convincing evidence—that sales representatives can make their own

sales at chain stores.” Id. at 49a; see id. at 48a-49a.

The district court then determined that petitioners

had “failed to demonstrate by clear and convincing evidence that [respondents’] primary duty as sales representatives is making sales at either chain stores or independent stores.” Pet. App. 49a. The court credited

evidence showing that respondents’ primary duties at

chain stores included “executing the terms of sales that

were previously made by EMD’s management and key

account managers,” as well as “keeping shelves full, keep-

5

ing shelves clean, and placing orders promptly.” Ibid.

The court viewed those responsibilities as “incidental to

sales that were already negotiated and executed” by

EMD management. Id. at 50a. With respect to independent stores, the court concluded that “although

making sales could theoretically be the primary duty of

some sales representatives, [petitioners] did not

demonstrate by clear and convincing evidence that this

is [respondents’] primary duty.” Ibid. In addition, the

court credited respondents’ testimony that they “spent

the bulk of their time at chain stores.” Ibid.

The district court therefore held that respondents

were entitled to unpaid overtime wages and liquidated

damages. Pet. App. 50a-52a, 54a.

3. The court of appeals affirmed. Pet. App. 3a-19a.

Petitioners challenged the district court’s liability holding solely on the ground that the court had applied the

incorrect standard of proof. Id. at 12a. The court of

appeals rejected that challenge based on circuit precedent. See id. at 12a-13a (citing Shockley v. City of Newport News, 997 F.2d 18, 21 (4th Cir. 1993)). Despite petitioners’ arguments that the court had never “adequately explained” the adoption of the heightened clearand-convincing-evidence standard of proof, the court

considered itself bound by the existing precedent. Id. at

13a. The court also rejected petitioners’ argument that

this Court’s decision in Encino Motorcars, LLC v. Navarro, 584 U.S. 79 (2018), should be read to supersede

the court of appeals’ precedent. Pet. App. 9a-15a. The

court explained that Encino Motorcars rejected the

principle that exemptions to the FLSA should be construed narrowly, which is a question of statutory interpretation that is “distinct” from the question of the applicable standard of proof on factual issues relevant to

6

this case. Id. at 15a. Because it was possible to read Encino Motorcars harmoniously with its own precedent,

the court declined to conclude that its precedent had

been overturned. Ibid.

4. The court of appeals denied en banc review. Pet.

App. 1a-2a.

SUMMARY OF ARGUMENT

To show that employees are exempt from the

FLSA’s minimum-wage and overtime requirements, an

employer must prove the applicability of one of the statute’s enumerated exemptions by a preponderance of the

evidence. That standard of proof presumptively applies

to civil litigation involving conventional remedies and

there is no basis to apply a heightened standard here.

A. Where Congress has not expressly addressed the

applicable standard of proof in the statutory text and

the Constitution does not dictate a particular standard,

this Court decides on the appropriate standard by assessing the interests and rights at stake. This Court

has long held that the preponderance-of-the-evidence

standard is the default standard of proof in civil litigation. A heightened standard requiring proof by clear

and convincing evidence applies only when the individual interests at stake in a proceeding are particularly

important, such as when the government attempts to

take coercive action resulting in relief more substantial

than mere loss of money.

B. Neither the text of the FLSA nor the rights it

protects suggests that employers must meet a heightened standard to prove the applicability of an exemption.

Because Congress did not address the standard of

proof, the presumption is that the preponderance-ofthe-evidence standard applies. And while the economic

rights protected by the FLSA are important, they in-

7

volve the type of workplace protections and conventional remedies to which the preponderance-of-theevidence standard commonly applies.

Indeed, the statutory history indicates that Congress viewed the preponderance-of-the-evidence standard as appropriately protective of the rights at issue. As

originally enacted, the FLSA provided for an administrative process for authorizing industry-specific minimum wages. In that context, Congress specifically provided that an exemption from the generally applicable

minimum wage was permissible only if the relevant

agency official found by a preponderance of the evidence that the exemption was necessary under the circumstances. There is no reason to think that Congress

would have wanted a higher standard to apply in civil

litigation regarding the applicability of statutory exemptions to the same minimum-wage requirement or

the related overtime requirement.

C. The Fourth Circuit is an outlier in adopting the

clear-and-convincing-evidence standard for FLSA exemptions, yet it has never articulated a reasoned basis

for doing so. The standard’s application to proof of

FLSA exemptions originated from the Fourth Circuit’s

misreading of out-of-circuit precedent that other circuits have expressly rejected. And despite multiple opportunities, respondents have chosen not to offer any

merits-based arguments in support of a heightened

standard. The lack of any substantive defense of the

court of appeals’ rule over the past 30 years underscores

its dubious foundation. This Court need only engage in

a straightforward application of its precedent to hold

that the preponderance-of-the-evidence standard applies.

8

ARGUMENT

THE STANDARD OF PROOF FOR FLSA EXEMPTIONS IS

A PREPONDERANCE OF THE EVIDENCE

In typical civil litigation involving conventional relief, the appropriate standard of proof is a preponderance of the evidence. Absent express statutory text, a

heightened clear-and-convincing standard applies only

where particularly important interests are at stake,

such as when the government attempts to take coercive

action that results in relief more significant than money

damages. The economic interests protected by the

FLSA do not rise to that level.

A. Preponderance Of The Evidence Is The Default Standard For Civil Actions

“The function of a standard of proof * * * is to ‘instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.” Addington v. Texas, 441 U.S. 418, 423 (1979)

(quoting In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring)). The particular level of proof required “allocate[s] the risk of error between the litigants” and “indicate[s] the relative importance attached

to the ultimate decision.” Ibid. If an examination of a

federal statute reveals that “Congress has not prescribed the appropriate standard of proof[,] and the

Constitution does not dictate a particular standard, [the

Court] must prescribe one.” Herman & MacLean v.

Huddleston, 459 U.S. 375, 389 (1983). The Court selects

among the three available standards of proof by looking

to the interests and rights at stake. Ibid.

In criminal cases, when the interests in avoiding an

erroneous judgment are at their peak, “our society im-

9

poses almost the entire risk of error upon itself ” and

requires that the government prove the defendant’s

guilt beyond a reasonable doubt. Addington, 441 U.S.

at 424; see id. at 423-424. Although there were early

efforts to employ that standard in certain civil cases

(e.g., those involving criminal conduct), such efforts

were “generally repudiated.” 4 John Henry Wigmore,

Treatise on the System of Evidence in Trials at Common Law § 2498, at 3546 (1905) (Wigmore); see id. at

3547.

On the other “end of the spectrum” is the preponderanceof-the-evidence standard, which does not “express[] a

preference for one side’s interests,” but instead “allows

both parties to ‘share the risk of error in roughly equal

fashion.’ ” Herman & MacLean, 459 U.S. at 390 (quoting Addington, 441 U.S. at 423). That standard has long

been the default standard of proof in civil litigation.

See, e.g., Wigmore § 2498, at 3545-3546; Lilienthal’s Tobacco v. United States, 97 U.S. 237, 266 (1878) (“In civil

cases [the jury’s] duty is to weigh the evidence carefully, and to find for the party in whose favor it preponderates.”). And this Court has repeatedly reaffirmed

that the preponderance-of-the-evidence standard generally applies to the mine-run of civil cases. See, e.g.,

Octane Fitness, LLC v. ICON Health & Fitness, Inc.,

572 U.S. 545, 557-558 (2014); Grogan v. Garner, 498 U.S.

279, 286 (1991); Herman & MacLean, 459 U.S. at 387;

Addington, 441 U.S. at 423; SEC v. C.M. Joiner Leasing

Corp., 320 U.S. 344, 355 (1943); United States v. Regan,

232 U.S. 37, 48 (1914).

Between those two standards lies the intermediate

standard requiring proof by clear and convincing evidence. That standard “apparently arose in courts of equity when the chancellor faced claims that were unen-

10

forceable at law because of the Statute of Wills, the

Statute of Frauds, or the parole evidence rule.” Herman & MacLean, 459 U.S. at 388 n.27. Because the

chancery courts were “[c]oncerned that claims would be

fabricated” by parties attempting to overcome written

instruments, they imposed a heightened standard of

proof. Ibid. This Court later adopted that standard “in

equity proceedings to set aside presumptively valid

written instruments on account of fraud.” Ibid. See,

e.g., Maxwell Land-Grant Case, 121 U.S. 325, 381

(1887).1

This Court has occasionally held that the clear-andconvincing-evidence standard applies “to protect particularly important individual interests in various civil

cases.” Addington, 441 U.S. at 424. The Court has

found such interests present in cases involving involuntary commitment, id. at 425-427; the termination of parental rights, Santosky v. Kramer, 455 U.S. 745, 758

(1982); deportation, Woodby v. INS, 385 U.S. 276, 285286 (1966); and denaturalization, Chaunt v. United

States, 364 U.S. 350, 353 (1960). Each time, the Court

has emphasized the unusual significance of the interests

at stake. See, e.g., Addington, 441 U.S. at 425-427 (recognizing that “civil commitment for any purpose constitutes a significant deprivation of liberty” such that “due

process requires the state to justify confinement by

proof more substantial than a mere preponderance of

Although this Court has acknowledged the historical use of the

clear-and-convincing standard in equitable fraud actions, it has cautioned against extending that standard to fraud-based statutory actions, reasoning that “[r]eference to common-law practices can be

misleading” and the “historical considerations” do not necessarily

apply in the statutory context. Herman & MacLean, 459 U.S. at

388.

1

11

the evidence”); Santosky, 455 U.S. at 758-759 (observing that “a natural parent’s desire for and right to the

companionship, care, custody, and management of his

or her children is an interest far more precious than any

property right,” and termination of parental rights is a

“unique kind of deprivation”) (citation and internal quotation marks omitted); Woodby, 385 U.S. at 286 (noting

the “immediate hardship of deportation,” which “result[s] in expulsion from our shores”); Chaunt, 364 U.S.

at 353 (recognizing “the grave consequences to the citizen” of denaturalization).

As the nature and number of those recognized interests indicates, “[e]xceptions” to the preponderance-ofthe-evidence standard in civil litigation remain “uncommon.” Price Waterhouse v. Hopkins, 490 U.S. 228, 253

(1989) (plurality opinion). The Court “presume[s]” that

the preponderance-of-the-evidence standard is applicable in civil actions absent a showing that “ ‘particularly

important individual interests or rights are at stake.’ ”

Grogan, 498 U.S. at 286 (citation omitted). See 2 Kenneth S. Broun et al., McCormick on Evidence § 339, at

707-708 (Robert P. Mosteller ed., 8th ed. 2020). Those

interests must be “more substantial than mere loss of

money,” Santosky, 455 U.S. at 756 (citation omitted);

they “ordinarily” involve “the government seek[ing] to

take unusual coercive action—action more dramatic

than entering an award of money damages or conventional relief—against an individual,” Price Waterhouse,

490 U.S. at 253 (plurality opinion).

Accordingly, the Court has rejected the use of the

clear-and-convincing-evidence standard and has instead

affirmed the applicability of the preponderance-of-theevidence standard in cases involving “imposition of even

severe civil sanctions.” Herman & MacLean, 459 U.S.

12

at 389-390 (securities fraud); see Regan, 232 U.S. at 4849 (civil suits for acts exposing a party to criminal prosecution); see also Halo Elecs., Inc. v. Pulse Elecs., Inc.,

579 U.S. 93, 107 (2016) (enhanced patent damages); Octane Fitness., 572 U.S. at 557-558 (patent fee shifting);

Grogan, 498 U.S. at 286-287 (bankruptcy discharges).

And the Court likewise has held that the preponderanceof-the-evidence standard applies to defenses against

claims involving “vitally important” interests involving

the protection of employees in the workplace. Price

Waterhouse, 490 U.S. at 254 (plurality opinion); see id.

at 260 (White, J., concurring in the judgment); id. at 261

(O’Connor, J., concurring in the judgment); Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287

(1977).

In Price Waterhouse, for example, the Court addressed a claim that an employer had engaged in sex

discrimination. The lower courts had held that once an

employee had shown that the employer “allowed a discriminatory impulse to play a motivating part in an employment decision,” the employer “must prove by clear

and convincing evidence that it would have made the

same decision in the absence of discrimination.” Price

Waterhouse, 490 U.S. at 252-253 (plurality opinion). In

requiring that heightened burden, the lower courts emphasized the “broad and insistent purposes” of Title VII

to “ ‘eradicat[e] discrimination throughout the economy

and [to make] persons whole for injuries suffered

through past discrimination.’ ” Day v. Mathews, 530

F.2d 1083, 1086 (D.C. Cir. 1976) (per curiam) (citation

omitted). This Court rejected that reasoning, however,

and confirmed that “[c]onventional rules of civil litigation generally apply in Title VII cases,” including the

rule “that parties to civil litigation need only prove their

13

case by a preponderance of the evidence.” Price Waterhouse, 490 U.S. at 253; see id. at 260 (White, J., concurring in the judgment); id. at 261 (O’Connor, J., concurring in the judgment). The Court recognized that the

interest in protecting employees from discrimination is

significant. Id. at 254 (plurality opinion). But the Court

nonetheless determined that, as in numerous other

cases involving important interests, the interest protected by Title VII’s antidiscrimination provision “is adequately served by requiring proof by a preponderance

of the evidence.” Ibid.

B. There Is No Basis For Departing From The PreponderanceOf-The-Evidence Standard In Deciding The Applicability Of FLSA Exemptions

Because the text of the FLSA does not include a

standard of proof for civil actions brought to enforce its

requirements, there is a presumption that Congress intended for the preponderance-of-the-evidence standard

to apply. See Grogan, 498 U.S. at 286. That presumption controls unless there is a showing that “particularly

important individual interests or rights are at stake.”

Ibid. (citation omitted). Such a showing cannot be made

here. The interests at stake and the statutory history

indicate that preponderance of the evidence is the appropriate standard of proof for FLSA exemptions.

1. A private suit seeking overtime pay fits comfortably within the category of “typical civil case[s] involving a monetary dispute between private parties” to

which the preponderance-of-the-evidence standard applies. Addington, 441 U.S. at 423. Although the FLSA

vindicates important economic rights, the rights at

stake are not comparable to those for which the Court

has determined that a heightened standard of proof is

required. See pp. 10-11, supra. Instead, the policies

14

promoted by the FLSA are more akin to other workplace protections that this Court has held to be “adequately served by requiring proof by a preponderance

of the evidence.” Price Waterhouse, 490 U.S. at 254

(plurality opinion) (discussing discrimination, union affiliation, and employee speech). Nor can the damages

that may be imposed for failure to pay overtime wages—

the unpaid overtime wages plus an equal amount in liquidated damages—be characterized as “unusual[ly] coercive” or “dramatic.” Id. at 253. This is the ordinary case

involving “mere loss of money,” Santosky, 455 U.S. at

756 (citation omitted), not the “uncommon” case requiring an “[e]xception[]” to the general rule for civil actions, Price Waterhouse, 490 U.S. at 253.

2. The statutory history provides further indication

that Congress saw no need for a heightened standard of

proof for exemptions to the FLSA’s requirements.

Just as in the current version, the FLSA as originally

enacted established minimum-wage and overtime pay

requirements and provided for statutory exemptions

for certain categories of employees, including “outside

salesm[e]n.” § 13(a)(1), 52 Stat. 1067; see §§ 6, 7, 13, 52

Stat. 1062-1064, 1067-1068. To implement the minimumwage requirement, the FLSA established an escalating

scale that would eventually achieve Congress’s “objective of a universal minimum wage of 40 cents an hour”

by gradually increasing the minimum wage, beginning

with 25 cents per hour in the first year, 30 cents per

hour for the next six years, and 40 cents per hour after

that. § 8(a), 52 Stat. 1064; see § 6(a)(1)-(3), 52 Stat. 10621063.

In addition to the general minimum wage, however,

the FLSA as originally enacted also provided for the

creation of industry committees that could recommend

15

industry-specific minimum wages greater than the initial statutory minimums, but “not in excess of 40 cents

an hour,” subject to approval by the Administrator of

the Wage and Hour Division. § 8(c) and (d), 52 Stat.

1064-1065; see § 6(a)(4), 52 Stat. 1063; see also Opp Cotton Mills v. Administrator of Wage & Hour Div. of

Dep’t of Labor, 312 U.S. 126, 134 (1941). But importantly, following the seven-year phase-in period, any

industry-specific minimum wage less than 40 cents an

hour could remain in effect or be adopted only if the industry committee and the Administrator found “by a

preponderance of the evidence” that an exemption “is

necessary in order to prevent substantial curtailment of

employment in the industry.” § 8(e), 52 Stat. 1065. See

H.R. Conf. Rep. No. 2738, 75th Cong., 3d Sess. 29 (1938)

(describing the exemption); 83 Cong. Rec. 9256 (1938)

(statement of Sen. Norton) (same). That provision was

in effect until October 26, 1949. See FLSA § 8, 63 Stat.

915 (repealing § 8).

Congress’s specification that the Administrator should

apply the preponderance-of-the-evidence standard in

granting industry exemptions to the FLSA’s minimumwage requirements indicates that Congress viewed

such a standard as appropriately protective of the interests embodied in the statute’s economic safeguards for

workers. There is no reason to think that Congress

would have viewed a heightened standard as necessary

when determining the applicability of statutory exemptions from the same minimum-wage requirements or

from the overtime requirements during the course of

civil litigation.2

The express adoption of the preponderance-of-the-evidence

standard for the Administrator’s determination does not create a

negative implication with respect to the standard for the applicabil2

16

C. Neither The Fourth Circuit Nor Respondents Have Offered Any Basis For Applying The Clear-And-ConvincingEvidence Standard

In the thirty years since the Fourth Circuit first

adopted the clear-and-convincing-evidence standard for

FLSA exemptions, that court has never attempted to

ground the standard in this Court’s precedent. Instead,

the standard developed through a misreading of out-ofcircuit decisions that the Fourth Circuit has failed to

correct. And despite multiple opportunities to defend

the standard, respondents have thus far been silent on

the merits of the court of appeals’ decision. That silence

underscores the lack of a reasoned basis for the court of

appeals’ decision.

1. The Fourth Circuit first identified the clear-andconvincing-evidence standard as applicable to FLSA

ity of FLSA exemptions during civil litigation. The background

principle that the preponderance-of-the-evidence standard applies

to civil litigation was well established, see e.g., Lilienthal’s Tobacco,

97 U.S. at 266, rendering unnecessary the articulation of the standard for that forum, see Grogan, 498 U.S. at 286 (explaining that statutory “silence is inconsistent with the view that Congress intended

to require a special, heightened standard of proof ”). That background principle would not necessarily apply to proceedings before

the Administrator. The FLSA was enacted before the Administrative Procedure Act, 5 U.S.C. 551 et seq., which this Court interpreted to adopt the preponderance-of-the-evidence standard for

agency adjudications. See Steadman v. SEC, 450 U.S. 91, 98-102

(1981). Congress thus sensibly specified the standard applicable to

the Administrator’s orders. And, as this Court has noted, “ ‘Congress has been unequivocal when imposing heightened proof requirements’ in other statutory contexts, including in other subsections within Title 29, when it has seen fit.’ ” Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 178 n.4 (2009) (citation omitted); see 25

U.S.C. 2504(b)(2)(B) (imposing “clear and convincing evidence”

standard); 29 U.S.C. 722(a)(3)(A)(ii) (same); see also Pet. Br. 16-18.

17

exemption cases in Shockley v. City of Newport News,

997 F.2d 18 (1993). In that case, the court set out the

FLSA’s requirements and stated that “[e]mployers

must prove by clear and convincing evidence that an

employee qualifies for exemption.” Id. at 21. The court

did not elaborate and provided no further reasoning to

support the use of that standard, aside from a citation

to an earlier decision—Clark v. J.M. Benson Co., 789

F.2d 282, 286 (4th Cir. 1986). But Clark addressed the

burden of proof, not the standard of proof. As this

Court has explained, those two concepts are distinct:

The burden of proof “identif[ies] the party who must

persuade the jury in its favor to prevail,” whereas the

standard of proof “refer[s] to the degree of certainty by

which the factfinder must be persuaded of a factual conclusion to find in favor of the party bearing the burden

of persuasion.” Microsoft Corp. v. i4i Ltd. P’ship, 564

U.S. 91, 100 n.4 (2011).

In Clark, the Fourth Circuit held that the FLSA

places on the employer the burden of proving the application of an exemption. 789 F.2d at 286. In so holding,

the court rejected the district court’s conclusion that

the employer bore only the burden of “producing some

evidence demonstrating the exemption’s applicability.”

Ibid. (emphasis added). Rather, the court invoked Tenth

Circuit precedent and stated that “ ‘[t]he employer who

asserts the * * * exemption has the burden of establishing * * * [the] requirements by clear and affirmative evidence.’ ” Ibid. (quoting Donovan v. United Video,

Inc., 725 F.2d 577, 581 (10th Cir. 1984) (first set of

brackets in original; emphasis added)). The Fourth Circuit in Clark viewed that quotation as supporting its

conclusion that “the defendant bears the full burden of

persuasion for the facts requisite to an exemption” ra-

18

ther than a more limited burden of production. Ibid.

But the court did not specifically adopt any particular

standard of proof.

Nor did the Tenth Circuit decision on which the

Fourth Circuit relied adopt a heightened standard of

proof. The Fourth Circuit’s quotation from the Tenth

Circuit’s decision in Donovan originated from a prior

opinion, which recognized that an employer “has the

burden of showing affirmatively that [the employees]

come clearly within an exemption provision.” McComb

v. Farmers Reservoir & Irrigation Co., 167 F.2d 911,

915 (10th Cir. 1948), aff ’d, 337 U.S. 755 (1949).3 That

context illustrates that the statement was only meant to

reflect the allocation of the burden of proof on the employer, not to impose the clear-and-convincing-evidence

standard of proof as a heightened evidentiary requirement that the employer must meet.

The Tenth Circuit itself has recognized as much and

has expressly rejected a reading of its decisions that

would “establish a heightened evidentiary requirement

on employers seeking to prove an FLSA exemption.”

Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151,

1158 (2012). The court acknowledged that its decisions’

use of the phrase “clear and affirmative evidence” had

led to “confusion”—within and outside the circuit—

regarding whether the standard of proof is clear and

convincing evidence rather than the “preponderance of

evidence standard traditionally applied in civil cases.”

Ibid. (citations omitted). The court then clarified that

the reference to “clear and affirmative evidence” simply

reflected “that the burden of proof is on the [employer],

See Donovan, 725 F.2d at 581 (citing Legg v. Rock Prods. Mfg.

Corp., 309 F.2d 172, 174 (10th Cir. 1962)); Legg, 309 F.2d at 174 (citing McComb, 167 F.2d at 915).

3

19

since entitlement to an exemption is an affirmative defense,” while invoking the “principle of statutory interpretation that exemptions from a statute that creates

remedies * * * should be construed narrowly.” Ibid.

(citations omitted; brackets in original).4 Thus, when

“read as a whole,” the Tenth Circuit found no basis in its

precedent for a clear-and-convincing-evidence standard.

Ibid. Notwithstanding the Tenth Circuit’s clarification,

the Fourth Circuit has continued to apply the clear-andconvincing-evidence standard to FLSA exemptions, citing its decisions invoking Tenth Circuit decisions. See

Pet. App. 13a-15a.

The Sixth and Seventh Circuits have provided an explanation similar to that of the Tenth Circuit in rejecting

plaintiffs’ attempts to invoke the clear-and-convincingevidence standard. See Renfro v. Indiana Mich. Power

Co., 497 F.3d 573, 576 (6th Cir. 2007); Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505, 506-507 (7th Cir. 2007).

As the Seventh Circuit explained, the language in various opinions referring to the obligation to provide “clear”

and “affirmative” evidence was meant to reflect the nowabrogated principle “that exemptions are to be construed narrowly,” rather than adopt a heightened standard of proof. Yi, 480 F.3d at 507-508. That language

was then “garbled” in later opinions, “the garbled form

Subsequently, in Encino Motorcars, LLC v. Navarro, 584 U.S.

79, 88-89 (2018), this Court rejected the canon of construction mandating a narrow reading of the scope of the FLSA’s exemptions.

Contrary to petitioners’ argument below, see Pet. App. 14a, that

holding has no bearing on the question presented in this case. Suggesting otherwise would conflate the standard of proof on questions

of fact and the question of the scope of the statutory exemptions,

repeating the error that led to the confusion regarding the applicability of the clear-and-convincing-evidence standard in the first

place.

4

20

repeated, and the original meaning forgotten.” Ibid.

Nowhere within that muddled history has any court of

appeals, including the Fourth Circuit, articulated a reasoned basis for applying the clear-and-convincingevidence standard to FLSA exemptions. And every

other court of appeals to have considered the issue applies the preponderance-of-the-evidence standard to

FLSA exemptions. See Faludi v. U.S. Shale Solutions,

L.L.C., 950 F.3d 269, 278 (5th Cir. 2020); Renfro, 497

F.3d at 576 (6th Cir.); Yi, 480 F.3d at 506-507 (7th Cir.);

Smith v. Porter, 143 F.2d 292, 294 (8th Cir. 1944); Coast

Van Lines, Inc., v. Armstrong, 167 F.2d 705, 707 (9th

Cir. 1948); Lederman, 685 F.3d at 1158 (10th Cir.);

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

1566 n.5 (11th Cir. 1991).

2. Respondents have likewise failed to even attempt

to defend the court of appeals’ rule, let alone ground it

in this Court’s precedent. In briefing at the certiorari

stage, both petitioners (see Pet. 18-21) and the government (U.S. Cert. Br. 9-12) explained the origin of the

court of appeals’ adoption of the clear-and-convincingevidence standard for FLSA exemptions and the failure

of that standard to align with this Court’s precedent.

Yet respondents offered no merits-based defense of the

court of appeals’ rule, even after the government highlighted (id. at 9, 14) their failure to do so. See Resp. Br.

in Opp. 8-19; Resp. Supp. Br. 1-3. Instead, respondents

focused only on their contention that the standard of

proof in FLSA cases is rarely outcome determinative

and was not the deciding factor here. See Resp. Br. in

Opp. 9-18; Resp. Supp. Br. 1-3. A party need not provide a full argument on the merits in certiorari-stage

briefing, but it is difficult to imagine that a right could

be of sufficient importance to warrant a clear-and-

21

convincing standard of proof where no party or court

has even attempted to justify that standard based on

first principles prior to the merits stage in this Court.

CONCLUSION

The Court should reverse the judgment below and

remand for further proceedings consistent with its decision.

Respectfully submitted.

SEEMA NANDA

Solicitor of Labor

JENNIFER S. BRAND

Associate Solicitor

RACHEL GOLDBERG

Counsel for Appellate

Litigation

ERIN M. MOHAN

Senior Attorney

Department of Labor

AUGUST 2024

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

AIMEE W. BROWN

Assistant to the Solicitor

General

CAROLINE D. LOPEZ

Attorney