“The Fourth Circuit’s decision is so wrong that even the Solicitor General urged summary reversal.”
—John Masslon, WLF Senior Litigation Counsel

WASHINGTON, DC— The U.S. Supreme Court today agreed to review a decision of the U.S. Court of Appeals for the Fourth Circuit that requires companies to prove the applicability of a Fair Labor Standards Act exemption by clear and convincing evidence. The order was welcome news for WLF, which filed an amicus brief with the Court urging review. The grant also comes after the Solicitor General recommended that the Court summarily reverse rather than grant full review.

The Court today also granted review in two other cases in which WLF filed in support of certiorari: NVIDIA Corp. v E. Ohman J:or Fonder AB and Wisconsin Bell, Inc. v. United States ex rel. Heath.

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

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

WLF’s brief also explained why this is an important and recurring issue. FLSA exemptions are often litigated. And many of those cases involve close and complex issues. Forcing employers to prove exemptions’ applicability tilts the scale in favor of plaintiffs. Nothing in the FLSA’s text suggests that Congress intended that result.