E.M.D. Sales, Inc. v. Carrera

Summary

The preponderance-of-the-evidence standard applies when an employer seeks to demonstrate that an employee is exempt from the minimum-wage and overtime-pay provisions of the Fair Labor Standards Act.

Text

PRELIMINARY PRINT 
Volume 604 U. S. Part 1 
Pages 45–55 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
January 15, 2025 
REBECCA A. WOMELDORF 
reporter of decisions 
Page Proof Pending Publication
NOTICE: This preliminary print is subject to formal revision before 
the bound volume is published. Users are requested to notify the Reporter 
of Decisions, Supreme Court of the United States, Washington, D. C. 20543, 
[email protected], of any typographical or other formal errors.

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OCTOBER TERM, 2024 45 
Syllabus 
E.M.D. SALES, INC., et al. v. CARRERA et al. 
certiorari to the united states court of appeals for 
the fourth circuit 
No. 23–217. Argued November 5, 2024—Decided January 15, 2025 
In 1938, Congress enacted the Fair Labor Standards Act (FLSA), guaran-
teeing a federal minimum wage for covered workers, 29 U. S. C. 
§ 206(a)(1), and requiring overtime pay for those working more than 40 
hours per week, § 207(a)(1). Congress exempted many types of employ-
ees from the FLSA's overtime-pay requirement, including outside sales-
men who primarily work away from their employer's place of business. 
§ 213(a)(1). The law places the burden on the employer to show that an 
exemption applies. 
Petitioner EMD distributes food products in the Washington, D. C., 
area and employs sales representatives who manage inventory and take 
orders at grocery stores. Several sales representatives sued EMD al-
leging that the company violated the FLSA by failing to pay them over-
time. EMD argued that the sales representatives were outside sales-
men and therefore exempt from the FLSA's overtime-pay requirement. 
After a bench trial, the District Court found EMD liable for overtime 
because EMD did not prove by clear and convincing evidence that its 
sales representatives were outside salesmen. On appeal, EMD ar-
gued that the District Court should have used the less stringent 
preponderance-of-the-evidence standard instead of the clear-and-
convincing-evidence standard. Applying Circuit precedent, the Fourth 
Circuit disagreed and affrmed the District Court's judgment. 
Held: The preponderance-of-the-evidence standard applies when an em-
ployer seeks to demonstrate that an employee is exempt from the 
minimum-wage and overtime-pay provisions of the FLSA. Pp. 49–54. 
(a) When Congress enacted the FLSA in 1938, the preponderance-of-
the-evidence standard was the default in American civil litigation, and 
it remains so today. In civil litigation, the Court has deviated from 
this default standard in three main circumstances. First, if a statute 
requires a heightened standard of proof, courts must apply it. See, e. g., 
§§ 218c(b)(1), 464(c). Second, the Constitution can mandate a height-
ened standard of proof. See, e. g., New York Times Co. v. Sullivan, 376 
U. S. 254; Addington v. Texas, 441 U. S. 418. Third, in certain rare 
situations involving coercive Government action, such as taking away a 
person's citizenship, a heightened standard may apply. See, e. g., Nishi-
kawa v. Dulles, 356 U. S. 129. But in most civil cases, including 
employment-discrimination cases under Title VII, the Court has consist-

46 E.M.D. SALES, INC. v. CARRERA 
Syllabus 
ently applied the preponderance standard. See, e. g., Price Waterhouse 
v. Hopkins, 490 U. S. 228. Pp. 49–51. 
(b) The FLSA does not specify a standard of proof for exemptions, 
and when a civil statute is silent, courts typically apply the preponder-
ance standard. See, e. g., Grogan v. Garner, 498 U. S. 279. This case 
does not involve constitutional rights that would require a heightened 
standard, nor does it involve the Government taking unusual or coercive 
action against an individual. FLSA cases are similar to Title VII 
employment-discrimination cases, where the Court has applied the pre-
ponderance standard. P. 52. 
(c) The employees' policy-laden arguments for a heightened standard 
are unconvincing. Their argument that the FLSA protects the public 
interest in a fair economy does not necessitate a heightened standard. 
Other workplace protections, like those under Title VII, also serve im-
portant public interests but are subject to the preponderance standard. 
The employees argue that rights under the FLSA are nonwaivable and 
therefore different from other rights subject to the preponderance 
standard. But waivability of a right does not determine the standard 
of proof. Pp. 52–54. 
(d) Whether the employees would fail to qualify as outside salesmen 
even under a preponderance standard is left for the Court of Appeals 
on remand. P. 54. 
75 F. 4th 345, reversed and remanded. 
Kavanaugh, J., delivered the opinion for a unanimous Court. Gor-
such, J., fled a concurring opinion, in which Thomas, J., joined, post, p. 54. 
Lisa S. Blatt argued the cause for petitioners. With her 
on the briefs were Aaron Z. Roper, Ian W. Swenson, Jeffrey 
M. Schwaber, and Eduardo S. Garcia. 
Aimee W. Brown argued the cause for the United States 
as amicus curiae urging reversal. With her on the brief 
were Solicitor General Prelogar, Principal Deputy Assist-
ant Attorney General Boynton, Deputy Solictor General 
Kneedler, Caroline D. Lopez, and Rachel Goldberg. 
Lauren E. Bateman argued the cause for respondents. 
With her on the brief were Allison M. Zieve and Omar Vin-
cent Melehy.* 
*Briefs of amici curiae urging reversal were fled for the Chamber of 
Commerce of the United States of America et al. by Steven A. Engel, 
Michael H. McGinley, Stephanie A. Maloney, and Angelo I. Amador; for 
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Cite as: 604 U. S. 45 (2025) 47 
Opinion of the Court 
Justice Kavanaugh delivered the opinion of the Court. 
The Fair Labor Standards Act of 1938 requires employers 
to pay their employees a minimum wage and overtime 
compensation. But the Act also exempts many categories 
of employees from the minimum-wage and overtime-
compensation requirements. The dispute here concerns the 
standard of proof that an employer must satisfy to show that 
an employee is exempt. The usual standard of proof in civil 
litigation is preponderance of the evidence. A more de-
manding standard, such as clear and convincing evidence, ap-
plies only when a statute or the Constitution requires a 
heightened standard or in certain other rare cases, such as 
“when the government seeks to take unusual coercive ac-
tion—action more dramatic than entering an award of money 
damages or other conventional relief—against an individual.” 
Price Waterhouse v. Hopkins, 490 U. S. 228, 253 (1989) (plu-
rality opinion). None of those exceptions applies to this 
case. Therefore, the preponderance-of-the-evidence stand-
ard governs when an employer attempts to demonstrate that 
an employee is exempt. 
I 
A 
In 1938, Congress passed and President Franklin Roose-
velt signed the Fair Labor Standards Act. 52 Stat. 1060. 
The Act guarantees covered workers a federal minimum 
wage. See 29 U. S. C. § 206(a)(1). The Act also generally 
requires overtime pay when a covered employee works more 
than 40 hours per week. See § 207(a)(1). 
the Local Government Legal Center et al. by Colin D. Dougherty, Marga-
ret McCall Reece, Amanda Karras, and Erich Eiselt; for the National 
Association of Wholesaler-Distributors et al. by Michael J. O'Neill, Mat-
thew C. Forys, and Richard P . Hutchison; and for the New England Legal 
Foundation by Benjamin G. Robbins and Daniel B. Winslow. A brief of 
amicus curiae urging vacatur was fled for the Washington Legal Founda-
tion by John M. Masslon II and Cory L. Andrews. 
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48 E.M.D. SALES, INC. v. CARRERA 
Opinion of the Court 
But Congress recognized that a minimum wage and over-
time pay would be impractical or inappropriate for some 
jobs. So the Act exempts many categories of employees 
from the minimum-wage requirement and exempts many 
more from the overtime-pay requirement. See §§ 213(a)–(b). 
Exempt employees can range from baseball players to sea-
men to maple-syrup processors to software engineers to 
frefghters, and so on. See §§ 213(a)(12), (17), (19), (b)(15), 
(20). The law places the burden on the employer to show 
that an exemption applies. See Corning Glass Works v. 
Brennan, 417 U. S. 188, 196–197 (1974). 
The exemption relevant here encompasses anyone em-
ployed “in the capacity of outside salesman.” § 213(a)(1). 
An “outside salesman” primarily makes sales and regularly 
works away from the employer's place of business. See 
Christopher v. SmithKline Beecham Corp., 567 U. S. 142, 148 
(2012); 29 CFR § 541.500(a) (2023). 
B 
EMD distributes international food products in the Wash-
ington, D. C., metropolitan area. EMD employs sales repre-
sentatives who manage inventory and take orders at grocery 
stores that stock EMD products. 
Several EMD sales representatives sued the company in 
the U. S. District Court for the District of Maryland. They 
alleged that EMD violated the Fair Labor Standards Act by 
failing to pay them overtime. EMD did not deny that the 
employees worked more than 40 hours per week without re-
ceiving overtime pay. But EMD argued that the employees 
fell within the Act's outside-salesman exemption. 
Following a bench trial, the District Court concluded that 
EMD failed to prove “by clear and convincing evidence” that 
the employees qualifed as outside salesmen. Civ. No. 17– 
3066 (D Md., Mar. 19, 2021), App. to Pet. for Cert. 49a. The 
court found that the employees primarily executed the terms 
of sales already made rather than making new sales them-
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Opinion of the Court 
selves. The court therefore ordered EMD to pay overtime 
wages and liquidated damages. 
On appeal, EMD contended that the District Court should 
have applied the less stringent preponderance-of-the -
evidence standard rather than the clear-and-convincing-
evidence standard. The U. S. Court of Appeals for the 
Fourth Circuit disagreed and affrmed the judgment of the 
District Court. 75 F. 4th 345 (2023). The Court of Appeals 
followed Circuit precedent requiring employers to prove the 
applicability of Fair Labor Standards Act exemptions by 
clear and convincing evidence. Id., at 351–352. Although 
the three-judge panel suggested that the full court might 
want to reconsider that precedent en banc, the court later 
denied en banc review. Id., at 353. 
The Fourth Circuit stands alone in requiring employers to 
prove the applicability of Fair Labor Standards Act exemp-
tions by clear and convincing evidence. Every other Court 
of Appeals to address the issue has held that the preponder-
ance standard applies. See Faludi v. U. S. Shale Solutions, 
L.L.C., 950 F. 3d 269, 273 (CA5 2020); Renfro v. Indiana 
Mich. Power Co., 497 F. 3d 573, 576 (CA6 2007); Yi v. Sterling 
Collision Centers, Inc., 480 F. 3d 505, 506–508 (CA7 2007); 
Coast Van Lines, Inc. v. Armstrong, 167 F. 2d 705, 707 (CA9 
1948); Lederman v. Frontier Fire Protection, Inc., 685 F. 3d 
1151, 1158 (CA10 2012); Dybach v. Florida Dept. of Correc-
tions, 942 F. 2d 1562, 1566, n. 5 (CA11 1991). This Court 
granted certiorari to resolve that confict. 602 U. S. 1029 
(2024). 
II 
A 
In 1938, when Congress enacted the Fair Labor Standards 
Act, the established default standard of proof in American 
civil litigation was the preponderance-of-the-evidence stand-
ard. The Court's cases pre-dating the Act recognized as 
much. See United States v. Regan, 232 U. S. 37, 48 (1914); 
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50 E.M.D. SALES, INC. v. CARRERA 
Opinion of the Court 
Lilienthal's Tobacco v. United States, 97 U. S. 237, 266 
(1878). As did prominent treatises. See 4 J. Wigmore, Evi-
dence in Trials at Common Law § 2498, pp. 3545–3546 (1905); 
3 S. Greenleaf, Law of Evidence § 29, p. 28 (8th ed. 1867). 
Since then, the preponderance-of-the-evidence standard 
has remained the default standard of proof in American civil 
litigation. That default makes sense: The preponderance 
standard allows both parties in the mine-run civil case to 
“share the risk of error in roughly equal fashion.” Her-
man & MacLean v. Huddleston, 459 U. S. 375, 390 (1983) 
(quotation marks omitted). 
In civil litigation, this Court has deviated from the prepon-
derance standard in three main circumstances. 
First, courts must apply a heightened standard of proof if 
a statute establishes one. For example, various provisions 
of the U. S. Code, including some involving labor and employ-
ment, designate clear and convincing evidence as the appli-
cable standard of proof. See, e. g., 29 U. S. C. § 218c(b)(1) 
(whistleblower-retaliation claims under the Fair Labor 
Standards Act); § 464(c) (validity of union-established trust-
eeships); § 722(a)(3)(A)(ii) (ineligibility for vocational rehabil-
itation services). The same can be true when Congress uses 
a term with a settled common-law meaning that itself re-
quired a heightened standard of proof. See, e.g., Microsoft 
Corp. v. i4i L. P ., 564 U. S. 91, 102 (2011). 
Second, courts likewise must apply a heightened standard 
of proof when the Constitution requires one. For example, 
the Court has mandated a clear-and-convincing-evidence 
standard in certain First Amendment cases. See, e. g., New 
York Times Co. v. Sullivan, 376 U. S. 254, 285–286 (1964); 
Gertz v. Robert Welch, Inc., 418 U. S. 323, 342 (1974). The 
Court has also held that the Due Process Clause necessitates 
a heightened standard in some cases. In Addington v. 
Texas, for example, the Court ruled that involuntary civil 
commitment constitutes such a “signifcant deprivation of lib-
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Opinion of the Court 
erty” by the government that “due process requires the state 
to justify confnement by proof more substantial than a mere 
preponderance of the evidence.” 441 U. S. 418, 425–427 
(1979). And in Santosky v. Kramer, the Court held the 
same with respect to the government's termination of paren-
tal rights: “Before a State may sever completely and irrevo-
cably the rights of parents in their natural child, due process 
requires that the State support its allegations by at least 
clear and convincing evidence.” 455 U. S. 745, 747–748 
(1982). 
Third, under this Court's precedents, a heightened stand-
ard of proof may be appropriate in certain other “uncommon” 
cases. Price Waterhouse v. Hopkins, 490 U. S. 228, 253 
(1989) (plurality opinion). These cases “ordinarily” arise 
“when the government seeks to take unusual coercive 
action—action more dramatic than entering an award of 
money damages or other conventional relief—against an indi-
vidual.” Ibid. For example, the Court has held that the 
government must satisfy a clear-and-convincing-evidence 
standard in order to take away a person's citizenship. See 
Nishikawa v. Dulles, 356 U. S. 129, 137–138 (1958) (expatria-
tion); Schneiderman v. United States, 320 U. S. 118, 122–123 
(1943) (denaturalization). 
Importantly, the Court has not otherwise used a height-
ened standard in civil matters. See Halo Electronics, Inc. 
v. Pulse Electronics, Inc., 579 U. S. 93, 107 (2016) (treble 
damages under the Patent Act); Grogan v. Garner, 498 U. S. 
279, 286–287 (1991) (bankruptcy discharges); Herman & Mac-
Lean, 459 U. S., at 389–390 (securities fraud); Regan, 232 
U. S., at 48–49 (civil-penalty suit under the Alien Immigra-
tion Act). Most relevant here, the Court has applied a pre-
ponderance standard in Title VII employment-discrimination 
cases. See Price Waterhouse , 490 U. S., at 253–254 (plural-
ity opinion); id., at 260 (White, J., concurring in judgment); 
id., at 261 (O'Connor, J., concurring in judgment). 
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52 E.M.D. SALES, INC. v. CARRERA 
Opinion of the Court 
B 
We conclude that the default preponderance standard gov-
erns when an employer seeks to prove that an employee is 
exempt under the Fair Labor Standards Act. 
First, as the employees acknowledge, the Fair Labor 
Standards Act does not specify a standard of proof for the 
Act's exemptions. Faced with silence, courts usually apply 
the default preponderance standard. Statutory silence is 
generally “inconsistent with the view that Congress in-
tended to require a special, heightened standard of proof.” 
Grogan, 498 U. S., at 286. 
Second, as the employees recognize, this case does not im-
plicate any constitutional rights that might require a height-
ened standard. 
Third, this is not a case where the government otherwise 
seeks to take “unusual coercive action” against an individual. 
Price Waterhouse , 490 U. S., at 253 (plurality opinion). 
Cases under the Fair Labor Standards Act are more akin to 
the Title VII cases where the Court has held that a prepon-
derance standard applies. If clear and convincing evidence 
is not required in Title VII cases, it is hard to see why it 
would be required in Fair Labor Standards Act cases. 
III 
We are not persuaded by the employees' policy-laden argu-
ments for a heightened standard when an employer seeks to 
show that an employee is exempt. The employees contend 
that the Act focuses not on the individual's interest in dam-
ages, but rather on the public's interest in a well-functioning 
economy where workers are guaranteed a fair wage. But 
that premise, even if accepted, does not demand a heightened 
standard. After all, other workplace protections that vindi-
cate important public interests remain subject to the pre-
ponderance standard. Eradicating discrimination from the 
workplace is undoubtedly important. Yet as explained 
above, this Court has held that a preponderance standard is

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Cite as: 604 U. S. 45 (2025) 53 
Opinion of the Court 
appropriate for Title VII cases. See Price Waterhouse v. 
Hopkins, 490 U. S. 228, 253–254 (1989) (plurality opinion). 
In addition, the public interest in Fair Labor Standards 
Act cases does not fall entirely on the side of employees. 
Most legislation refects a balance of competing interests. 
So it is here. Rather than choose sides in a policy debate, 
this Court must apply the statute as written and as informed 
by the longstanding default rule regarding the standard of 
proof. 
Next, the employees contend that the minimum-wage and 
overtime-pay rights conferred by the Fair Labor Standards 
Act are not waivable and are therefore distinct from other 
rights subject to a preponderance standard. But the waiva-
bility (or lack thereof) of a right does not dictate the applica-
ble standard of proof. Consider the criminal process. Even 
though the prosecution must meet a high standard of proof— 
beyond a reasonable doubt—criminal defendants may waive 
their right to trial by pleading guilty. At the same time, 
some rights that are not waivable are subject to the 
preponderance-of-the-evidence standard. For example, cer-
tain rights conferred by the National Labor Relations Act 
are not waivable. See National Licorice Co. v. NLRB, 309 
U. S. 350, 360–361 (1940); McLaren Macomb , 372 N. L. R. B. 
No. 58, pp. 5–6 (2023). Yet employers may prove affrmative 
defenses to those rights by a preponderance. See NLRB v. 
Transportation Management Corp., 462 U. S. 393, 400, 403 
(1983). 
As those cases illustrate, the waivability of a right and 
the standard of proof are two distinct inquiries. Therefore, 
although at least some Fair Labor Standards Act rights are 
not waivable, it does not follow that a heightened standard 
of proof must apply when an employer attempts to show that 
an employee is exempt. 
Finally, the employees assert that a heightened standard 
should govern in Fair Labor Standards Act cases because 
the employer controls much of the evidence relevant to es-

54 E.M.D. SALES, INC. v. CARRERA 
Gorsuch, J., concurring 
tablishing a violation and because plaintiffs in those cases 
may have low incomes. But in Title VII cases too, employ-
ers control “most of the cards,” and plaintiffs may be low-
income. Murray v. UBS Securities, LLC , 601 U. S. 23, 36 
(2024) (quotation marks omitted). Yet the preponderance 
standard applies in those cases. So too here. 
* * * 
We hold that the preponderance-of-the-evidence standard 
applies when an employer seeks to show that an employee is 
exempt from the minimum-wage and overtime-pay provi-
sions of the Fair Labor Standards Act. The employees 
argue that we should still affrm because they would not 
qualify as outside salesmen even under a preponderance 
standard. But our usual practice is to leave matters of that 
sort for remand. We see no persuasive reason to stray from 
that usual practice here. We therefore reverse the judg-
ment of the Court of Appeals and remand the case for fur-
ther proceedings consistent with this opinion. 
It is so ordered. 
Justice Gorsuch, with whom Justice Thomas joins, 
concurring. 
Sometimes, the Constitution or Congress provides a par-
ticular standard of proof. See ante, at 50–51. If not, courts 
must fnd one. As in other contexts, they do so by examin-
ing the legal backdrop against which Congress has legislated. 
See, e. g., Dixon v. United States, 548 U. S. 1, 17 (2006); cf. 
Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 
108 (1991) (“Congress is understood to legislate against a 
background of common-law adjudicatory principles”). In 
civil cases, those background legal principles typically re-
quire proof by a preponderance of the evidence. See ante, at 
49–50. Occasionally, though, the default “common-law rule” 
provides instead for a “heightened standard of proof.” Mi-
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Cite as: 604 U. S. 45 (2025) 55 
Gorsuch, J., concurring 
crosoft Corp. v. i4i L. P ., 564 U. S. 91, 116 (2011) (Thomas, J., 
concurring in judgment). Either way, courts apply the de-
fault standard unless Congress alters it or the Constitution 
forbids it. See, e. g., Octane Fitness, LLC v. ICON Health & 
Fitness, Inc., 572 U. S. 545, 557–558 (2014). To do otherwise 
would be to “choose sides in a policy debate,” ante, at 53, 
rather than to declare the law as our judicial duty requires. 
Our decision today is consistent with this understanding, and 
I am pleased to join it. 
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Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
None

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 604 U. S. Part 1 Pages 45–55 OFFICIAL REPORTS OF THE SUPREME COURT January 15, 2025 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to not…

• #2

  it remains so today. In civil litigation, the Court has deviated from this default standard in three main circumstances. First, if a statute requires a heightened standard of proof, courts must apply it. See, e. g., §§ 218c(b)(1), 464(c). Second, the Constitution can mandate a height- ened standard of proof. See, …

• #3

  Aimee W. Brown argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Prelogar, Principal Deputy Assist- ant Attorney General Boynton, Deputy Solictor General Kneedler, Caroline D. Lopez, and Rachel Goldberg. Lauren E. Bateman argued the cause for res…

• #4

  Foundation by Benjamin G. Robbins and Daniel B. Winslow. A brief of amicus curiae urging vacatur was fled for the Washington Legal Founda- tion by John M. Masslon II and Cory L. Andrews. Page Proof Pending Publication 48 E.M.D. SALES, INC. v. CARRERA Opinion of the Court But Congress recognized that a minimum wa…

• #5

  evidence standard rather than the clear-and-convincing- evidence standard. The U. S. Court of Appeals for the Fourth Circuit disagreed and affrmed the judgment of the District Court. 75 F. 4th 345 (2023). The Court of Appeals followed Circuit precedent requiring employers to prove the applicability of Fair Labor …

• #6

  First, courts must apply a heightened standard of proof if a statute establishes one. For example, various provisions of the U. S. Code, including some involving labor and employ- ment, designate clear and convincing evidence as the appli- cable standard of proof. See, e. g., 29 U. S. C. § 218c(b)(1) (whistleblow…

• #7

  standard in order to take away a person's citizenship. See Nishikawa v. Dulles, 356 U. S. 129, 137–138 (1958) (expatria- tion); Schneiderman v. United States, 320 U. S. 118, 122–123 (1943) (denaturalization). Importantly, the Court has not otherwise used a height- ened standard in civil matters. See Halo Electron…

• #8

  ages, but rather on the public's interest in a well-functioning economy where workers are guaranteed a fair wage. But that premise, even if accepted, does not demand a heightened standard. After all, other workplace protections that vindi- cate important public interests remain subject to the pre- ponderance stan…

• #9

  should govern in Fair Labor Standards Act cases because the employer controls much of the evidence relevant to es- 54 E.M.D. SALES, INC. v. CARRERA Gorsuch, J., concurring tablishing a violation and because plaintiffs in those cases may have low incomes. But in Title VII cases too, employ- ers control “most of t…

• #10

  Our decision today is consistent with this understanding, and I am pleased to join it. Page Proof Pending Publication Page Proof Pending Publication Reporter’s Note The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes…