Hunton Employment & Labor Perspectives

On January 15, 2025, the U.S. Supreme Court issued its unanimous decision in E.M.D. Sales, Inc. v. Carrera, authored by Justice Kavanaugh, and held FLSA exemptions should be analyzed under the "preponderance of the evidence" standard, rather than the higher “clear and convincing evidence” standard applied by the Fourth Circuit, which hears appeals from the federal district courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia, and from federal administrative agencies.

On September 9, 2021, the Fifth Circuit issued a 12-6 opinion in Hewitt v. Helix Energy Solutions Group, Inc., 15 F.4th 289 (5th Cir. 2021) that clarified the requirements for day rate workers to fall within one of the FLSA’s exemptions from overtime payment.  This ruling was hotly-contested because it made clear that employers must take additional steps to properly classify their day rate workers as exempt employees, even when those employees clearly exceed the financial threshold of the highly compensated exemption.  Many expect the decision to substantially affect the course of day rate FLSA litigation in the Fifth Circuit, especially misclassification disputes within the energy industry.