E.M.D. Sales, Inc. v. Carrera (23-217)

argument 23-217

E.M.D. Sales, Inc. v. Carrera

Supreme Court of the United States 42 min 6 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the central issue the Court is addressing in E.M.D. Sales v. Carrera?

John G. Roberts 0:00

We'll hear argument next in case twenty three two hundred seventeen, EMD sales versus Carrera. Ms. Black?

Robert Butelman 0:08

Mr Chief Justice, and may it please the Court. For over a century, this court has held that the default standard in civil cases is preponderance of the evidence. That default rule should resolve this case. Nothing in the text suggests that Congress intended a clear and convincing evidence standard to apply to the thirty-four exemptions under the Fair Labor Standard Fair Labor Standards Act. Respondent Respondents argue that a heightened standard is appropriate because FLSA rights are important, but a preponderant standard applies to rights against race discrimination and disability discrimination and rights to organize and to workplace safety, all super important rights. This court has reserved the clear and convincing uh standard.

Robert Butelman 0:52

to uh deprivations uh by the government of critical rights that don't involve money damages. This court has never allowed plaintiffs to use a clear and convincing standard as a sword and it certainly has never read a clear and convincing standard into a statute for money damages. Respondents also argue that overtime rights aren't waivable. But waivability and standards of proof are unrelated and don't go hand in hand. Waivability goes to who owns the right, the government or the individual. And a standard of proof goes to how hard it is to prove that the right attaches in the first place. Thus, uh the preponderance of the evidence standard governs non waivable rights such as those under the NLRA and OSHA, and heightened standards govern waivable rights such as those in criminal trials and deportation hearings.

Robert Butelman 1:43

Because the court below applied only the clear and convincing standard, we think this court should remand for the application of the preponderance standard. I welcome the court's questions.

Clarence Thomas 1:54

Uh other than the in context of actual malice, can you think of any other case where uh th there has been a requirement, this court is required, uh clear and convincing? that where mu only money damages were at issue.

Robert Butelman 2:10

No, the only example we would say is in the water rights cases where they are sovereigns. So I don't think that's really money damages, but in those apportionment cases this court has long held clear and convincing applies in st in cases between sovereigns.

Clarence Thomas 2:22

How would you respond? What do you have to say about uh uh respondents' public private right uh or private public rights argument?

Robert Butelman 2:31

Sure, a couple things. I mean I do think a public nature goes to the waveability and as my opening talked about that's um a distinct issue in terms of standard uh of proof. But more importantly, the public has an equal interest in the accurate um implementation of the act and this court in Encino said the exemptions are equally a part of the statute and the public has an interest in making sure if it's more likely than not an employee doesn't fall within a category and should be exempt. then under a clear and convincing standard that employee may be required to pay overtime even when the purposes of the statute are not only not uh not invoked, but they're counterproductive because it impall it imposes very unjustified costs, particularly under small businesses.

John G. Roberts 3:16

How are we supposed to uh make the argument that the higher standard applies in, you know, termination of parental rights and all that? But uh how are we supposed to make the judgment that uh the concern to uh remediate uh dire labor situations uh when this uh act was passed uh are similarly worthy of a heightened standard? The disparity in you know, bargaining power between the people who are seeking uh uh the the wages and the uh employer and all that.

Robert Butelman 3:49

Yeah, all of course all you know, good points. Nineteen thirty-eight though, we cite these cases from both the eighteen seventy-seven and um nineteen fourteen, the Lilienthal's tobacco and the Reagan case involving civil penalties. Um and one was just and it cites, you know, centuries worth of precedent or treatises saying the preponderate standard is the back the background presumption.