FLSA Exemption Burden of Proof
How courts apply E.M.D. Sales v. Carrera’s preponderance-of-the-evidence standard to white-collar exemption disputes under 29 C.F.R. Part 541 — which circuit formulations are dead, and where the fair-reading rule from Encino Motorcars leaves the duties tests.
FLSA Exemptions After E.M.D. Sales: Preponderance, Fair Reading, Fact Questions
The rule is now uniform: "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 provisions of the Fair Labor Standards Act." The FLSA is silent on the burden, and "[s]tatutory silence is generally ‘inconsistent with the view that Congress intended to require a special, heightened standard of proof’"; a heightened standard "applies only when a statute or the Constitution requires" it or "when the government seeks to take unusual coercive action." Nor does the nonwaivability of FLSA rights change anything — "the waivability (or lack thereof) of a right does not dictate the applicable standard of proof." E.M.D. Sales, Inc. v. Carrera, 145 S. Ct. 34 (2025). The Fourth Circuit’s clear-and-convincing rule is gone.
The courts of appeals have folded the holding into the exemption framework built on 29 U.S.C. § 213 and 29 C.F.R. Part 541. In a Department of Labor enforcement action over nursing-facility staff, Secretary United States Department of Labor v. Comprehensive Healthcare Management Services LLC, No. 24-2842 (3d Cir. Jun 3, 2026) restated the pair of governing principles: exemptions "should not be construed narrowly against an employer; rather, they must be given a fair reading," and "an employer bears the burden of proving an employee’s exempt status by a preponderance of the evidence, not plainly and unmistakably" — remanding for exemption findings under the correct standard.
District courts are pruning the old vocabulary. Learing v. The Anthem Companies, Inc., 795 F. Supp. 3d 1118 (D. Minn. 2025) concluded that "the more prudent approach is to abandon the phrase ‘plainly and unmistakably’ altogether in these kinds of cases," reading Encino Motorcars’s fair-reading instruction together with E.M.D. Sales. The lower burden had bite: the court vacated its own earlier grant of partial summary judgment against the learned-professional exemption, because "the record reveals genuine issues of material fact when viewed through the lens of the preponderance-of-the-evidence standard" — including whether nurse medical managers drew on advanced clinical knowledge or "simply appl[ied] well-established techniques or procedures . . . within closely prescribed limits," and because "[t]he use of manuals, guidelines or other established procedures containing or relating to . . . complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills does not preclude exemption."
The net effect for Part 541 litigation: the burden allocation is unchanged (employers still prove exemptions), but the standard now matches ordinary civil litigation, and courts applying heightened formulations — "clear and convincing," "plainly and unmistakably," "narrowly construed" — are being reversed or are correcting themselves. Expect more duties-test disputes to survive summary judgment in both directions, since evidence that once failed a heightened standard may now create a genuine fact question, and expect the fight to concentrate where it always mattered: what the employee actually does all day.