In E.M.D. Sales, Inc. v. Cabrera, issued on January 15, 2025, the Supreme Court held that the “preponderance of the evidence” standard—and not the more difficult-to-satisfy “clear and convincing evidence” standard—applies when an employer seeks to demonstrate that an employee is exempt from the minimum wage and/or overtime pay provisions of the Fair Labor Standards Act.

In an FLSA dispute, plaintiffs bear the burden to prove all elements of their claims.  But if the employer is defending on the ground that an exemption applies, the employer has the burden of proof on the exemption.  The issue before the Supreme Court in Cabrera was the level of proof required.

In 1938, when Congress passed and President Franklin D. Roosevelt signed the FLSA, the default standard of proof in American civil litigation was the “preponderance of the evidence” standard.  That standard—which allows both parties to “share the risk of error in roughly equal fashion,” in the Court’s words—remains the default standard of proof in American civil litigation today.

In civil litigation, the Supreme Court has deviated from the default preponderance standard in three main circumstances:

  • where a statute expressly requires a heightened standard of proof;
  • where the Constitution requires a heightened standard of proof; and
  • in “uncommon” cases where Supreme Court precedent holds that a heightened standard of proof is appropriate, including where the government seeks to take action “more dramatic than entering an award of money damages or other conventional relief” against an individual (e.g., revocation of citizenship).

With none of these circumstances present, the Court held that the default preponderance standard governs when an employer seeks to prove that an employee is exempt under the FLSA.  The Court quickly disposed of the plaintiff-employees’ policy arguments, noting that “[i]f clear and convincing evidence is not required in Title VII cases, it is hard to see why it would be required in [FLSA] cases.”

Proskauer’s Wage and Hour Group is comprised of seasoned litigators who regularly advise the world’s leading companies to help them avoid, minimize, and manage exposure to wage and hour-related risk.  Subscribe to our wage and hour blog to stay current on the latest developments.

Photo of Allan Bloom Allan Bloom

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended…

Allan Bloom is the co-chair of Proskauer’s Labor & Employment Law Department and a nationally recognized litigator and advisor who represents employers, business owners, and management in a broad range of employment and labor law matters. As a litigator, Allan has successfully defended many of the world’s leading companies against claims for unpaid wages, employment discrimination, breach of contract and wrongful discharge, both at the trial and appellate court levels as well as in arbitration, before government agencies, and in private negotiations. He has secured complete defense verdicts for clients in front of juries, as well as injunctions to protect clients’ confidential information and assets.

As the leader of Proskauer’s Wage and Hour Practice Group, Allan has been a strategic partner to a number of Fortune 500 companies to help them avoid, minimize and manage exposure to wage and hour-related risk. Allan’s views on wage and hour issues have been featured in The New York TimesReutersBloomberg and Fortune, among other leading publications. His class-action defense work for clients has saved billions of dollars in potential damages.

Allan is regularly called on to advise operating companies, management companies, fund sponsors, boards of directors and senior leadership on highly sensitive matters including executive and key person transitions, internal investigations and strategic workforce planning. He has particular expertise in the financial services industry, where he has litigated, arbitrated, and mediated disputes for more than 20 years.

A prolific author and speaker, Allan was the Editor of the New York State Bar Association’s Labor and Employment Law Journal from 2012 to 2017. He has served as an author, editor and contributor to a number of leading treatises in the field of employment law, including ADR in Employment Law (ABA/Bloomberg BNA), Employment Discrimination Law (ABA/Bloomberg BNA), Cutting Edge Advances in Resolving Workplace Disputes (Cornell University/CPR), The Employment Law Review (Law Business Research, U.S. Chapter Author), and The Complete Compliance and Ethics Manual (SCCE).

Allan has served as longtime pro bono counsel to Lincoln Center for the Performing Arts and The Public Theater, among other nonprofit organizations.  He is a past Vice Chair of Repair the World, a nonprofit organization that mobilizes volunteers and their communities to take action to pursue a just world, and a past recipient of the Lawyers Alliance Cornerstone Award for extraordinary contributions through pro bono legal services.

Allan is a Fellow of the College of Labor and Employment Lawyers and has been recognized as a leading practitioner by Chambers since 2011.