Three current and former employees of EMD, a distributor of food products to grocery stores in the Washington, DC, metropolitan area, filed suit alleging that EMD violated the Fair Labor Standards Act (FLSA) by failing to pay overtime. At EMD, plaintiffs’ tasks included stocking shelves with EMD products, removing damaged and expired items from the shelves, and issuing credits to the serviced stores for removed items. EMD, however, argued before the district court that the employees were not entitled to overtime because they fell under the FLSA’s exemption for “outside salesmen.” The district court rejected that argument, holding that the company had not established that the employees’ primary duty was making sales. On appeal, EMD argued that the district court erred by requiring it to establish employees’ primary duty by “clear and convincing evidence,” rather than by a “preponderance of the evidence.” Based on its existing precedent, the Fourth Circuit affirmed the district court’s decision.
EMD then filed a petition in the Supreme Court, asking the Court to establish that employers in the Fourth Circuit need only establish by a “preponderance of the evidence”—not “clear and convincing evidence”—that employees are exempt from the FLSA’s protections. Serving as co-counsel for the employees in the Supreme Court, we filed the opposition to the petition, explaining that the standard of proof made no difference in this case and seldom makes a difference in other cases.