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Making Sense of Burdens of Proof in Employment Cases
Editor's Note
Making Sense of Burdens of Proof in Employment Cases
This is a nice summary of the Supreme Court's decision about what burden of proof applies to the claims and defenses in a Fair Labor Standards Act (federal wage and hour) cases.
So let's talk about what burdens of proof are and why they matter.
Who has the burden of proof in a lawsuit?
Generally, the party making the claim has the burden of proof to bring admissible evidence that supports their claim. If the defendant has a defense to that claim, then the burden shifts to the defendant to prove their defense.
What are the different burdens of proof?
In civil cases, the burden of proof is generally "preponderance of the evidence." It's an old fashioned legal way of saying "more likely than not." Has the plaintiff brought evidence that shows it's more likely than not that their version of the story is true?
"More likely than not" is not a high standard of proof. It basically means at least 51% likely. This is another way of saying a 50-50 tie goes to the defendant. When it's 50-50, the person making the claim has not made their 51% burden of proof.
In some cases for some things, there is a higher burden of proof, which is that the party must bring "clear and convincing evidence." Nobody knows exactly what this means and you can't really quantify it as easily. It basically means really believable that it happened that way.
The Supreme Court has described clear and convincing as "the evidence is highly and substantially more likely to be true than untrue." I know, it doesn't help. What we do know is that "clear and convincing" is a higher level of believability that requires more evidence than "more likely than not." It's more than 51%. Still, "even more probable" doesn't really help either. And yet, we get the gist.
When is clear and convincing evidence required?
Clear and convincing evidence is required when there is more at stake than just competing claims over money damages, which is what's at stake in most civil cases. A higher burden of proof comes up in fraud cases and claims for punitive damages where a finding of liability comes with additional penalties. Punitive or exemplary damages are imposed to punish someone for doing something more horrible than usual and usually requires a finding that they knew it would harm someone and decided to do it anyway. A finding of fraud means the person either lied or withheld information they were required to give in order to intentionally mislead someone. And that the lies caused someone to either do or not do something which harmed them harm. For most of our legal history, being found liable for fraud was really bad. Under our legal system, the ends do NOT justify the means when lying causes harm to people. Any people.
In this case, it was a garden variety wage claim for overtime. The employer said the employee was exempt from overtime under one of the legal exceptions. There's no fraud or intentional harm, just a disagreement over the application of a legal definition of who is exempt from overtime. There's nothing about a wage claim that would require clear and convincing evidence even though paying people the wages they are entitled to is an important public policy.
In addition, if the person bringing the claim only has to prove their claim under the lower "more likely than not" standard, then it makes sense to apply the same burden of proof to the person raising a defense to the same claim. This one made good legal sense to me.
- Heather Bussing
by Noah Finkel and Kyle Winnick
Seyfarth Synopsis: In E.M.D. Sales, Inc., et al. v. Carrera, et al, the United States Supreme Court unanimously held that employers need only prove an employee is exempt from overtime under the Fair Labor Standards Act by a preponderance of the evidence standard rather than by clear and convincing evidence.
In E.M.D. Sales, Inc., et al. v. Carrera, et al., the United States Supreme Court, in a unanimous opinion, resolved a circuit split and held that the preponderance-of-the-evidence standard governs whether an employee is exempt from overtime under the Fair Labor Standards Act (FLSA). This decision is a win for employers and may have important implications outside the exemption context.
As our readers know well, the FLSA exempts various categories of workers from its overtime requirements, but employers have the burden to prove that an exemption applies. The question the Carrera case answered is what standard of proof employers have to meet to prove that an exemption applies.
Every federal Court of Appeals to have addressed this issue held that the preponderance standard applies except for the Fourth Circuit, which held that employers must prove an exemption by clear and convincing evidence, a much higher standard. The Supreme Court sided with the majority of Court of Appeals and held that the preponderance standard governs.
The Court reasoned that the preponderance standard is the “default” standard in civil cases and analogized the FLSA with Title VII of the Civil Rights Act of 1964 (Title VII), which likewise uses a preponderance of evidence standard. As the Court stated, “[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.”
The employees in Carrera had argued that a higher standard should apply because of the importance of the FLSA in supporting “a well-functioning economy where workers are guaranteed a fair wage” and that the FLSA’s rights are not waivable. The Court rejected such policy-based arguments by again drawing a comparison with Title VII. “Eradicating discrimination from the workplace is undoubtedly important. Yet . . . this Court has held that a preponderance standard is appropriate for Title VII cases.” The Court further explained that the text of the statute, not policy considerations, guided its interpretation: “Rather than choose sides in a policy debate, this Court must apply the statue as written and as informed by the longstanding default rule regarding the standard of proof.”
The theme of interpreting the FLSA according to its text, as opposed to its supposed underlying policy objectives, is not new. As we explained here, in Encino Motorcars, LLC v. Navarro, the Court rejected the principle—adopted by most Court of Appeals—that the FLSA’s exemptions should be “construed narrowly,” based on policy considerations. Instead, the exemptions should be given “a fair (rather than a ‘narrow’) interpretation.” This was a welcome change because courts all too often, as we noted here, used the “construed narrowly” principle to reach desired pro-employee results, without persuasive analysis.
Cases like Carrera and Encino may have important implications outside of the exemption context. As we discussed here, federal courts historically have applied a two-step approach to certification of collective actions under the FLSA—with the first step (typically called “conditional certification”) posing a minimal burden for plaintiffs. The justification for this minimal burden or lenient standard often is, at least in part, the FLSA’s remedial purpose–a purpose of just about every other employment (and other) statute. Several courts recently have rejected this approach, adopting a higher burden to justify FLSA collective certification. Carrera fully supports a higher standard for initial certification of a FLSA collective, because—like Encino—it rejects the principle that the FLSA should be construed broadly to effectuate nebulous policy considerations.
Similarly, as discussed here, some courts have held that an individual FLSA claim cannot be settled unless approved by the court or the Department of Labor. Thus, while discrimination and harassment claims (not to mention, almost every other type of civil claim) may be settled without court supervision, some courts have held that settling FLSA claims, even if worth only a de minimis amount, needs judicial approval. Such courts cite the remedial purposes of the FLSA as justification for the need of court supervision. But Carrera—like Encino before it—calls into question the policy-based justification of such court supervision.
In short, Carrera is a welcome employer win, and one that may lead to even more.
