Orgs Tell Justices Stricter Proof Bar Isn’t In OT Carveout
By Irene Spezzamonte · 2024-08-15 16:01:41 -0400 · Listen to article
Two legal services organizations told the U.S. Supreme Court that holding employers to a higher standard to prove their employees are overtime-exempt would break a legislative balance and clash with federal law, backing an international food distributor’s challenge to a Fourth Circuit ruling.
In two separate amicus briefs Wednesday, the Washington Legal Foundation and New England Legal Foundation threw their support behind E.M.D Sales Inc. and owner Elda Devarie case, which the court in June agreed to take up.
The two foundations similarly said the Fourth Circuit went against the Fair Labor Standards Act when it agreed with a federal court that the company and owner failed to prove by clear and convincing evidence that the sales representatives suing them fell under the FLSA’s outside sales exemption.
That carveout frees employers from paying overtime to employees who are “customarily and regularly engaged away from the employer’s place or places of business in performing such primary duty,” according to the appellate court’s ruling.
The foundations, just like E.M.D and Devarie, said the company and its owner should have been held to a preponderance of evidence standard.
The Washington Legal Foundation said in its amicus brief that “Congress did not say that it should be almost impossible for employers to prove an FLSA exemption,” which would be the result should the Fourth Circuit’s ruling stay in place.
It is Congress’ job to enact policy and the courts’ responsibility to follow those directions, the Washington Legal Foundation said.
However, “the Fourth Circuit views itself as a policymaking body, free to override Congress’s policy judgments,” the Washington Legal Foundation said.
The New England Legal Foundation said in its brief that the FLSA’s outside sales exemption is one of 34 scenarios making employees overtime-exempt, and “Congress has remained silent on the applicable standard of proof” of all those carveouts.
“This silence is inconsistent with an intent to require a heightened standard of proof,” the New England Legal Foundation said.
Congress’ goal was also one of preserving employees’ rights to overtime while favoring employers’ interests with exemptions, the New England Legal Foundation argued.
“Only a mere-preponderance 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 New England Legal Foundation said.
John M. Masslon II of the Washington Legal Foundation told Law360 on Thursday, “The Supreme Court should have no problem unanimously rejecting the Fourth Circuit’s outlier position and holding that employers must prove the applicability of FLSA exemptions by a preponderance of the evidence.”
Benjamin G. Robbins of the New England Legal Foundation told Law360 on Thursday that “only a mere-preponderance standard” would put employees and employers on the same level, echoing the organization’s amicus brief arguments.
“By contrast, a heightened, clear-and-convincing standard of proof would destroy Congress’s balanced treatment of overtime pay, by favoring the exempt employee’s interest over the employer’s, and thereby requiring the employer to bear the risk and expense of a wrong decision on the issue,” Robbins said.
Representatives of E.M.D., Devarie and the workers did not immediately respond to requests for comment Thursday.
The Washington Legal Foundation is represented in-house by John M. Masslon II and Cory L. Andrews.
The New England Legal Foundation is represented in-house by Benjamin G. Robbins and Daniel B. Winslow.
E.M.D. and Devarie are represented by Lisa Blatt, Aaron Roper and Ian Swenson of Williams & Connolly LLP and Eduardo Garcia and Jeffrey Schwaber of Stein Sperling Bennett De Jong Driscoll PC.
The sales representatives are represented by Lauren Bateman and Allison Zieve of Public Citizen Litigation Group and Omar Vincent Melehy, Suvita Melehy and Andrew Balashov of Melehy & Associates LLC.
The case is E.M.D. Sales Inc. et al. v. Carrera et al., case number 23-217, in the Supreme Court of the United States.
–Editing by Emma Brauer.
Link to article: https://www.law360.com/employment-authority/articles/1870347