Paul DeCamp Quoted in “Justices’ Look at Overtime Exemption Proof Raises Liability Risk”

Paul DeCamp, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in the Bloomberg Law Daily Labor Report, in “Justices’ Look at Overtime Exemption Proof Raises Liability Risk,” by Khorri Atkinson. (Read the full version – subscription required.)

Following is an excerpt:

The US Supreme Court’s upcoming review of the burden of proof for showing that workers are exempt from federal overtime requirements threatens to reshape the way wage-and-hour litigation plays out and alter how companies approach the issue.

The justices agreed earlier this week to examine a US Court of Appeals for the Fourth Circuit ruling requiring employers to present “clear and convincing evidence” that certain workers aren’t covered by the Fair Labor Standards Act’s overtime protections.

The decision is an outlier that deviates from the majority of federal appeals courts that have addressed the issue. The Eleventh, Tenth, Ninth, Seventh, Sixth, and Fifth circuits all apply the “preponderance of evidence” standard for overtime exemptions. …

Affirming the Fourth Circuit’s higher evidentiary burden would expose employers to greater liability under the FLSA and shift the focus of litigation, attorneys and scholars told Bloomberg Law. Doing so would give workers an advantage in bringing allegations that they’re owed overtime pay and make it easier to win at trial, they said.

“The burden of proof certainly affects how businesses and workers litigate cases,” said Paul DeCamp, an attorney with Epstein Becker & Green PC. But it’s oftentimes not the decisive issue in a case, he said.

“But in certain relatively close cases, the burden of proof can be dispositive because most courts have recognized that the clear and convincing evidence standard is much more demanding than a simple preponderance of the evidence,” said DeCamp, a former US Labor Department wage and hour chief under President George W. Bush. …

No Summary Reversal

DeCamp said he was “a bit surprised” that the Supreme Court decided to consider the case with full briefing and oral argument rather than summarily reversing the Fourth Circuit, as the DOL and the US Justice Department recommended in an amicus brief filed last month at the justices’ request.

“To me this was a pretty easy case and the Fourth Circuit’s decision has always struck me as an outlier destined for reversal,” DeCamp said. “But I’m sure the court had its reasons.”