By unanimous decision, the U.S. Supreme Court ruled that preponderance of the evidence is the standard of proof that an employer needs to meet to show that employees are exempt from the FLSA. A Wage Hour Opinion Letter concluded that employers can’t require employees to use accrued paid leave when they receive FMLA leave under a state or local law. President Trump has made appointments to the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC). The EEOC has released performance data for the fiscal year that ended on September 30, 2024.

Supreme Court Rules for Employer in FLSA Standard of Proof Case – By unanimous decision in the case of EMD Sales, Inc. v. Carrera, the United States Supreme Court ruled that preponderance of the evidence is the standard of proof that an employer must meet to show that an employee is exempt from the Fair Labor Standards Act (FLSA). Justice Kavanaugh who wrote the opinion concluded that the “default preponderance standard governs when an employer seeks to prove that an employee is exempt under the Fair Labor Standards Act.”

EMD Sales distributes food products and employs sales representatives who manage inventory and take orders at grocery stores that sell its products. Several sales representatives sued  claiming that they were entitled to overtime for hours worked in excess of 40 hours per week. The company argued that the sales representatives were exempt since they worked in outside sales. Both the District Court and the Court of Appeals for the Fourth Circuit applied the more stringent clear and convincing evidence standard and ruled for the employees. The Supreme Court reviewed this case since the Fourth Circuit was the only appellate court to apply the clear and convincing standard while all other appellate courts that have considered this issue have used the preponderance of the evidence standard. 

Justice Kavanaugh noted that in civil litigation, the Supreme Court has applied the preponderance of the evidence standard except when a statute or the Constitution require a heightened standard or in other “uncommon” cases when the government seeks to take unusual coercive action such as taking away a person’s citizenship. He stated that “Cases under the Fair Labor Standards Act are more akin to the Title VII cases where the Court has held that a preponderance standard applies. If 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.”

Employers Can’t Require Use of Paid Time Off When Employees Receive State/Local FMLA Leave – The Wage and Hour Division of the Department of Labor issued an opinion letter clarifying the application of the Family and Medical Leave Act (FMLA) when state and local laws provide paid leave. According to the opinion letter, state or local paid family or medical leave programs are not specifically addressed in the FMLA regulations. If leave taken under the state or local program is FMLA qualifying leave, it must be designated as FMLA leave. The FMLA regulations allow an employer to require or an employee to choose to substitute accrued employer provided time off for the unpaid FMLA leave. The opinion letter states that the FMLA substitution provision does not apply to leave provided under a state or local paid leave program.  However, the opinion letter advises that the employer and employee can agree to use the employer provided accrued leave to supplement the payments, but “neither the employer nor the employee can unilaterally require the concurrent use of employer-provided paid leave during the portion of the leave that is compensated by the state or local program.”

The opinion letter declares that if a state or local paid leave program provides coverage for conditions that do not qualify as FMLA leave, the employer is prohibited from counting the leave against the employee’s FMLA leave entitlement. Also, the opinion letter notes that if the benefits provided under the state or local paid leave program end before the employee has used the total amount of FMLA leave entitlement, the employee is entitled to the protection of the FMLA.

President Makes NLRB and EEOC Appointments – President Donald Trump appointed Marvin Kaplan the chairman of the National Labor Relations Board (NLRB). He has served as a member of the NLRB since August 2017. He was confirmed by the Senate for a second five-year term that expires in August 2025. The five member NLRB currently has two vacancies.

President Trump also appointed Andrea Lucas acting chair of the Equal Employment Opportunity Commission (EEOC). She has served as an EEOC commissioner since 2020. The five member commission currently has one vacancy.

EEOC Issues Performance Data – The Equal Employment Opportunity Commission (EEOC) released a report on its performance during fiscal year 2024, which ended on September 30, 2024. The EEOC announced that it recovered almost $700 million for over 21,000 victims of employment discrimination, which represents the highest monetary recovery in its recent history. EEOC Commissioner and former Chair Charlotte A. Burrows stated, “The continued need for EEOC’s efforts to eradicate employment discrimination, reflected in part by the rising number of charges it received this fiscal year, makes clear that we cannot take past progress for granted.” 

According to the EEOC, it received 88,531 new charges of discrimination during the fiscal year, which was an increase of more than 9% over fiscal year 2023. EEOC ended the fiscal year with 52,080 pending charges. EEOC field offices received 248,255 inquiries, there were 553,000 calls to the agency contact center, and 90,000 emails were submitted. During the last fiscal year, EEOC filed 111 lawsuits, including the first five lawsuits filed under the Pregnant Workers Fairness Act, resolved 132 lawsuits, and filed 39 amicus briefs in federal appellate and district courts.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues and was an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.

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