Employment Litigation · Primary-source case analysis

E.M.D. Sales: Employers Prove FLSA Exemptions by a Preponderance

By Aneeta Mishra and Timothy Chan

Published September 12, 2026

Food-distribution sales representatives sought overtime pay. Their employer argued that they were outside salespeople exempt from the Fair Labor Standards Act, but the lower courts required the exemption to be proved by clear and convincing evidence.

Preponderance is the civil default

The Court began with the ordinary rule that civil claims and defenses are proved by a preponderance unless a statute, the Constitution, or a rare category of unusually coercive government action requires more.

The FLSA creates no heightened proof rule

Nothing in the FLSA’s text requires clear and convincing evidence for exemptions. The social importance of wage protections did not justify creating a special evidentiary standard that Congress had not enacted.

The employer still bears the exemption burden

The decision lowered the degree of certainty required in the Fourth Circuit but did not shift the burden to employees. Employers invoking an exemption must still prove each required element on the actual duties, compensation, and work setting.

The merits remained for remand

The Supreme Court reversed the use of a heightened standard and returned the case. It did not decide whether these sales representatives qualified as outside salespeople under the ordinary preponderance test.

Key takeaways

• Use preponderance of the evidence for FLSA exemptions.
• Keep the burden on the employer invoking the exemption.
• Develop evidence of actual work rather than relying on job titles.
• Separate the standard of proof from whether the exemption elements are met.