FLSA Exemption Burden of Proof

Proving White-Collar Exemptions by a Preponderance After E.M.D. Sales

The Supreme Court settled the question: "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." Preponderance is the civil default, and "[a] more demanding standard, such as clear and convincing evidence, applies 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 action—action more dramatic than entering an award of money damages or other conventional relief—against an individual.’" The employees’ counterarguments each failed: "the waivability of a right and the standard of proof are two distinct inquiries," so the nonwaivable character of FLSA rights proves nothing about the burden, and the public-interest argument collided with the Title VII analogy — "[i]f 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," since "other workplace protections that vindicate important public interests remain subject to the preponderance standard." E.M.D. Sales, Inc. v. Carrera, 145 S. Ct. 34 (2025). The Fourth Circuit’s clear-and-convincing outlier did not survive.

The white-collar exemptions rest on 29 U.S.C. § 213’s text covering "any employee employed in a bona fide executive, administrative, or professional capacity," with those terms "defined and delimited from time to time by regulations of the Secretary" in 29 C.F.R. Part 541. At the circuit level, Secretary United States Department of Labor v. Comprehensive Healthcare Management Services LLC, No. 24-2842 (3d Cir. Jun 3, 2026) distilled the corrected framework into two rules for a Department of Labor enforcement action against nursing facilities: "The Supreme Court has clarified that FLSA 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." Because the district court had run the exemption analysis under the outdated standards, the panel remanded for the administrative- and professional-exemption questions to be decided under the right ones.

What the lower burden changes on the ground shows up in Learing v. The Anthem Companies, Inc., 795 F. Supp. 3d 1118 (D. Minn. 2025). E.M.D. Sales issued mid-case, and since "[a] district court ordinarily has the power to modify or rescind its orders at any point prior to final judgment in a civil case," the court reconsidered its own summary-judgment ruling. It noted that the Supreme Court "did not, however, address or otherwise discuss the ‘plainly and unmistakably’ language that is common in these kinds of cases in the Eighth Circuit," but was "not convinced that attempting to reconcile the ‘plainly and unmistakably’ language pertaining to statutory construction with the preponderance-of-the-evidence standard for evidentiary sufficiency is an effective or sustainable approach" — concluding that "the more prudent approach is to abandon the phrase ‘plainly and unmistakably’ altogether in these kinds of cases." Under preponderance plus fair reading, the court vacated its earlier partial summary judgment against the learned-professional exemption and left the nurse-medical-manager duties fight for trial, where the line runs between "employees who simply apply well-established techniques or procedures described in manuals or other sources within closely prescribed limits" and guideline use involving "complex matters that can be understood or interpreted only by those with advanced or specialized knowledge or skills," which "does not preclude exemption."

The litigation checklist is short. Audit briefs, proposed instructions, and prior orders for the retired vocabulary — "clear and convincing," "plainly and unmistakably," "narrowly construed" — because courts are unwinding rulings built on any of it, including their own interlocutory decisions. The burden allocation has not moved (employers still prove the exemption), but the ordinary civil standard paired with a fair reading converts cases the heightened formulations used to end at summary judgment into genuine duties disputes. That puts a premium on the factual record of what the employee actually does: the judgment the role requires, what the manuals leave open, and the specialized knowledge the work draws on now decide these cases, not the standard of proof.