NACo Legal Advocacy: EMD Sales, Inc. v. Carrera

COUNTY NEXUS

EMD Sales, Inc. v. Carrera could make it more difficult for county governments to prove exemptions under the Fair Labor Standards Act (FLSA), which would increase the potential for costly litigation.

BACKGROUND

The FLSA establishes minimum wage, overtime pay, recordkeeping, and youth employment standards affecting employees in the private sector and in Federal, State, and local governments. Generally, the FLSA provides that employers must pay overtime pay at a rate of time and a half for work done above 40 hours per week. However, there are 34 exemptions to the overtime requirement. EMD Sales involves a dispute around whether employees of a grocery store distributor who worked outside the office servicing stores on their assigned routes meet the "outside sales" exemption. In taking up the case, the Court will determine whether an exemption under FLSA requires an employer to demonstrate preponderance of the evidence (more than 51 percent) or a “clear and convincing” standard of proof, which is a much higher burden. The Court will resolve a circuit split on this question.  FLSA claims are extremely common and make up 45 percent of all new federal labor cases filed in court.

NACo ADVOCACY

Stay tuned for a Local Government Legal Center amicus brief in support of the petitioner, which will argue that the preponderance of evidence standard is sufficient to prove FLSA exemptions. Should this case lower the threshold for the burden of proof to qualify for FLSA exemptions, county governments - which employ 1 percent of America's workforce - will face more difficulty in demonstrating that an exemption applies and may see increased costly litigation.

CURRENT STATUS

Oral argument scheduled for November 5, 2024.