WASHINGTON, D.C. (Aug. 20, 2024) – NFIB filed an amicus brief in the case E.M.D Sales, Inc. v. Faustino Sanchez Carrera at the United States Supreme Court. The case considers what standard of proof should be used to determine if an exemption to employers’ overtime pay requirements applies under the Fair Labor Standards Act (FLSA). NFIB filed the brief with the U.S. Chamber Litigation Center.

“The traditional standard provided a straightforward evidentiary burden for determining FLSA exceptions, but the Fourth Circuit’s excessive evidence standard places employers as a distinct disadvantage,” said Beth Milito, Executive Director of NFIB’s Small Business Legal Center. “Small employers do not have the resources of their larger counterparts and will be the least able to defend themselves. As is so often the case, small businesses will be disproportionately impacted by this imbalance. NFIB urges the Court to reverse.”

NFIB’s amicus brief argues three main points: 1) Since Congress has never specified a standard for determining burden of proof in the FLSA, exceptions should be adjudicated under the established, traditional “preponderance of the evidence” standard, 2) The “clear and convincing evidence” standard draws no support for the FLSA’s overarching objectives, encourages frivolous claims against employers, and ultimately harms consumers, 3) The Fourth Circuit’s standard will disproportionately impact small businesses, and 4) Adopting the traditional “preponderance of the evidence” standard would not unduly burden employees or prevent them from seeking or recovering overtime pay.

The NFIB Small Business Legal Center protects the rights of small business owners in the nation’s courts. NFIB is currently active in more than 40 cases in federal and state courts across the country and in the U.S. Supreme Court.