DEFENDING FLORIDA EMPLOYERS: PREPONDERANCE OF EVIDENCE IS THE STANDARD FOR ESTABLISHING AN FLSA OVERTIME EXEMPTION

The Fair Labor Standards Act (FLSA) requires employers to pay employees overtime for hours worked in excess of 40 hours in a week. The overtime rate is one and a half times the employees’ regular hourly rate. However, the FLSA also establishes many exemptions from the overtime pay requirement. Common exemptions include the professional, administrative, executive, and outside sales exemptions. In lawsuits by employees alleging unpaid overtime, employers usually raise the defense that the employees qualified for an overtime exemption. But how does one prove the employee qualified for an exemption and how much evidence is needed to establish the defense? These questions concern the standard of proof for an overtime exemption. The Supreme Court recently held in E.M.D. Sales, Inc. v. Carrera, 604 U.S. ___ (2025), that a preponderance of the evidence standard applies. The Miami business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

In E.M.D. Sales, Inc., a food distributor was sued by a group of employees. The employees worked for the distributor as sales representatives who managed inventory and took orders at grocery stores. The company’s primary defense was that the employees were exempt under the outside sales exemption. The trial court applied a heightened standard of proof to this defense, which required the company to prove the exemption by clear and convincing evidence. A clear and convincing standard requires a party to prove its claims or defenses to a reasonable certainty. After trial, the court concluded that the employer did not meet this high standard and found in favor of the employees. The company appealed and the Fourth Circuit affirmed based on their own prior precedent.

The company appealed again to the Supreme Court. The Supreme Court held that the correct standard of proof for FLSA exemptions is preponderance of the evidence. Under the preponderance of the evidence standard, a party must show that the greater weight of the evidence supports the party’s claims or defenses. Preponderance of the evidence is the default standard in civil litigation and, notably, is a lower standard than clear and convincing evidence. The Supreme Court determined that a heightened standard of proof like clear and convincing evidence has been applied in only three situations: where a statute establishes a heightened standard, when the Constitution requires one, and in cases where the government takes an unusually coercive action. None of these situations applied to the considerations of an FLSA overtime exemption. The Supreme Court buttressed its ruling by also holding that the default preponderance of the evidence standard applies when a statute is silent on standards of proof. Since the FLSA is silent on the standard of proof for proving an exemption, preponderance of the evidence applies.

E.M.D. Sales, Inc. is important for employers in Florida because it clarifies the correct standard of proof for FLSA exemptions. Employers in Florida are covered by the Eleventh Circuit Court of Appeals, and the Eleventh Circuit has given contradictory rulings regarding the standard of proof for overtime exemptions. For example, in Dybach v. Fla. Dep’t of Corrections, 942 F.2d 1562 (11th Cir. 1991), the Eleventh Circuit held that a preponderance of the evidence standard applied to whether an employee was exempt under the professional exemption. However, in Birdwell v. City of Gadsden, Ala., 970 F.2d 802 (11th Cir. 1992), the Eleventh Circuit held that an employer must prove applicability of an exemption by “clear and affirmative evidence.” The Supreme Court’s decision in E.M.D. Sales, Inc. resolves this confusion in favor of the more reasonable preponderance of the evidence standard.

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.