A New Standard of Proof: Rethinking Evidence and Workers' Rights

The United States court system operates on the presumption of innocence—the doctrine that individuals must be proven guilty based on sufficient evidence. However, the concept of adequate proof becomes increasingly complex when considering recent court decisions, particularly the recent decision in E.M.D. Sales, Inc v Carrera (2024). [1] This Supreme Court decision solidifies the preponderance of evidence doctrine, which fundamentally lowers the burden of proof for employers to exempt minimum wage and overtime benefits under the Fair Labor Standards Act (FLSA). Consequently, an overt shift in United States policy has taken form, signaling corporate priority over employee protection. As such, a legal dilemma has emerged regarding how the new standard of proof doctrine impacts America's working class, a key aspect of the American economic complex. 

By examining how the burden of proof has evolved with recent precedents, one can discern how evidentiary standards inform judicial outcomes. Specifically, the court case Colorado v. New Mexico (1984) provides context on one of these standards of proof. [2] In 1984, the case Colorado v. New Mexico (1984) explored the equal apportionment of waters in the Vermejo River, which flows from Colorado into New Mexico and was primarily used for New Mexico's agricultural industry. The Colorado Fuel and Iron Steel Corporation (C.F. & I.) wanted to apportion some of the Vermejo River’s water to Colorado for industrial use. However, New Mexico citizens held senior water rights, granting them initial use of the river so long as they had a legitimate and beneficial purpose. As such, to counter the Corporation, these citizens filed an injunction, restricting the planned diversion of water. In response, the State of Colorado filed an original complaint to the U.S. Supreme Court (SCOTUS), urging the Justices to equally apportion the Vermejo River’s water. In an attempt to resolve this issue, a special master—a neutral party delegated to resolve complex legal matters—was appointed. His recommendation backed Colorado’s plan to divert “4,000 acre-feet of water per year.” [3] However, the Supreme Court determined that the special master’s report lacked crucial information vital to the case and remanded the case for further analysis. In its decision, the Supreme Court determined that Colorado’s complaint did not meet the clear and convincing standard, which requires that “evidence is highly and substantially more likely to be true than untrue.” [4] In other words, the fact finder—someone who evaluates the facts of the case through an examination of evidence and testimony—should believe that their conclusion is highly probable and be convinced of the violation. When applying this standard, the Supreme Court was uncertain that New Mexico would recover from the diversion through conservation efforts and found the cost-benefit analysis too expensive. New Mexico was already highly dependent on the river, increasing the risk of “irreparable harm” when large amounts of water were to be reapportioned. [5] As such, when contextualizing this decision with the reallocation of natural resources more broadly, the Court determined that the evidentiary standards required a detailed and factual analysis. Consequently, one can interpret Colorado’s defeat as a reflection of the state’s inability to meet a rigorous evidentiary burden of proof for its proposed plan. 

Despite this standard, it is notably different from the preponderance of evidence doctrine defined in Karch v. Karch (2005). [6] In 2005, the Superior Court of Pennsylvania ruled on whether a couple who had an abusive relationship could claim custody of four children. The husband, Dinzel J. Karch, had multiple documented offenses against his wife, including “an incident wherein Husband had placed his hands around Wife's neck and threatened to ‘snap’ it.” [7] Christine E. Stewart Karch, afraid for her life, obtained a 30-day Protection from Abuse order (PFA). Unfortunately, only a few weeks later, her husband placed his hand on her forehead and “made a motion with his hands as if he was firing a gun, and said, 'there is your future.’” [8] Again, fearing for her safety, Christine Karch filed a report with the police and spent the night in her SUV outside the police station. After finding her SUV’s tire flat and punctured the next morning, Christine Karch filed for a PFA on May 17, 2004, ultimately receiving a final PFA order soon afterward. Dinzel Karch appealed this final order, arguing that the evidence regarding the SUV puncture was insufficient to justify its issuance. The court stated that when ruling on insufficient evidence claims on PFA cases, it leaned on the side of the petitioner—“to tip a scale slightly”—to give her the benefit of the doubt based on reasonable inferences. [9] The court ruled that the fear instilled within Christina from Dinzel justified the “abuse” function in the Protection from Abuse Act, thus providing sufficient evidence to justify the PFA order. [10]

As such, when comparing the Colorado v. New Mexico (1984) and Karch v Karch (2005) cases, one can ascertain that they both present differing standards regarding the burden of proof. Under the evidentiary standard dictated in Karch, the burden of proof only requires one to believe there is a “greater than 50% chance that the claim is true.” [11] The Pennsylvania case Barbour v. Municipal Police Officers Education and Training Commission affirms this burden of proof as “a contested fact to be more probable than its nonexistence.” [12] In particular, the Commonwealth Court of Pennsylvania established “cause for revoking Petitioners' certifications by a preponderance of the evidence.” [13] Such a ruling demonstrates how this evidentiary standard has historically been applied to cases that extend beyond the scope of child custody, cementing the preponderance of evidence as one of the foremost evidentiary thresholds. 

These precedents shaped the case EMD Sales Inc. v. Carrera, which further modified the burden of proof. [14] EMD Sales Inc. is a food distributor that hires labor for inventory management. Multiple sales representatives filed a lawsuit after the corporation failed to reimburse them for their overtime benefits. After the District Court ruled against EMD Sales Inc., utilizing the clear and convincing evidence standard, EMD Sales Inc. did not pay the overtime benefits and appealed to the Supreme Court. The appeal revolved around the doctrine that “absent explicit legislative directive," the preponderance of evidence standard should be applied. [15] EMD Sales Inc. made a distinction that individual interests are “substantial,” fundamental aspects of rights and liberties that are not implicated by a ‘“mere loss of money.”’ [16] The Court agreed unanimously, finding that FLSA proceedings do not violate core liberty interests, representing a clear shift in favor of employer rights. Although the Supreme Court ruled that the preponderance of evidence does apply to EMD Sales Inc. vs Carrera (2024), it still found that sales representatives were not exempt from overtime wage benefits. Hence, despite Carrera’s partial victory, this latent shift in the burden of proof has overt implications for the working class, particularly for marginalized groups. In particular, because the text of the FLSA “remains silent” on the burden of proof within its provisions, the question of which standard best fits these exemptions is dependent on the Court’s interpretation. [17] In turn, given how the standard of proof has evolved, recent precedents like Carrera have an outsized influence on determining the rights of employers and their employees.

However, although the FLSA’s standard of proof is “not definitive,” SCOTUS should have established a more rigid evidentiary standard that clarified the preponderance of evidence standard in FLSA proceedings. [18] According to Carrera, employers appear to gain a more robust legal advantage, requiring them to be only 51 percent certain in decisions on benefits for overtime employees. Faustino Sanchez Carrera et al. (Carrera) dissent, arguing that the “heightened standard exists to protect the public interest because a mistaken finding of fact in an employer’s favor can prevent the elimination of substandard working conditions.” [19] This is particularly true when considering how corporations are motivated to find these overtime exemptions so they can reduce their payroll for benefits. This dynamic creates a system where companies begin to misclassify workers to meet this burden standard, providing them with an easier route to a FLSA exemption. Thus, Carrera’s claim “that employers can currently control evidence relevant to FLSA determinations, such as changing the job title of an employee, to fit into one of the FLSA exemption” appears to be a legitimate concern [20] However, Carrera also recognizes that “many employees in FLSA cases are poor, uneducated, and belong to minority groups, which creates a greater risk of erroneous fact finding for the employer.” [21] As such, while Carrera partially won, this case presents a seemingly dangerous precedent for those who need overtime benefits, predominantly the working class. 

 Do employees bear the same evidentiary standard as the abusive husband in Karch v Karch, with corporations benefiting from the presumption granted to a survivor of abuse? [22] The short answer is not exactly, as the cases cover different legal areas. However, the comparison highlights a broader shift in the legal burden of proof, reconfiguring power in a new labor system where exemptions are more probable than guaranteed. What’s even more striking is how the FLSA does not provide benefits for all categories of workers; under the status quo, service advisors are already exempt from FLSA overtime benefits. In Encino Motorcars LLC v. Navarro (2018), the Supreme Court clarified that “service advisors at car dealerships” are exempt from the FLSA as they are “salesm[e]n . . . primarily engaged in . . . servicing automobiles.” [23] Hence, because the FLSA exempts certain roles related to managerial or administrative positions, workers are at greater risk of losing benefits when compared to their employer counterparts. 

In conclusion, Encino Motorcars LLC v. Navarro and EMD Sales Inc. v. Carrera demonstrate that SCOTUS is narrowing the coverage for employee protections while decreasing the burden of proof for large-scale employers. The Supreme Court’s decisions illustrate a prevalent trend of eroding workers' rights, particularly by decreasing the burden of proof for employers. As employers rethink workers' rights through a profit-driven calculus, labor is becoming increasingly quantified, manipulated, and ultimately commodified. After all, it appears that the system is governed by a mere preponderance, like a coin toss for employees’ livelihoods. 

Edited by Joaquin Recinos

[1] E.M.D. Sales, Inc. v. Carrera, No. 23-217 (U.S. Jan. 15, 2025), https://www.supremecourt.gov/opinions/24pdf/23-217_9o6b.pdf.

[2] Colorado v. New Mexico, 467 U.S. 310 (1984), available at https://supreme.justia.com/cases/federal/us/467/310/.

[3] Ibid.

[4] Legal Information Institute. “Clear and Convincing Evidence.” Wex, Cornell Law School. Accessed June 2, 2025. https://www.law.cornell.edu/wex/clear_and_convincing_evidence.

[5] Colorado v. New Mexico, 467 U.S. 310 (1984), available at https://supreme.justia.com/cases/federal/us/467/310/.

[6] Karch v. Karch, No. 888567992 (Pa. Commw. Ct. 2005), available at https://case-law.vlex.com/vid/karch-v-karch-888567992.

[7] Ibid.

[8] Ibid.

[9] Legal Information Institute, “Preponderance of the Evidence,” Cornell Law School, https://www.law.cornell.edu/wex/preponderance_of_the_evidence.

[10] Karch v. Karch, No. 888567992 (Pa. Commw. Ct. 2005), available at https://case-law.vlex.com/vid/karch-v-karch-888567992.

[11] Legal Information Institute, “Preponderance of the Evidence,” Cornell Law School, https://www.law.cornell.edu/wex/preponderance_of_the_evidence.

[12] Barbour v. Municipal Police Officers Education and Training Commission, No. 1605335 (Pa. Commw. Ct. 2011), available at https://caselaw.findlaw.com/court/pa-commonwealth-court/1605335.html.

[13] Ibid.

[14] E.M.D. Sales, Inc. v. Carrera, 601 U.S. ___ (2024), available at https://www.law.cornell.edu/supct/cert/23-217.

[15] Ibid. 

[16] Ibid. 

[17] Jackson Lewis P.C., “Wage and Hour Year in Review 2023,” February 2024, https://www.jacksonlewis.com/sites/default/files/2024-02/JL_Wage_Hour_Year_In_Review_2023.pdf.

[18] E.M.D. Sales, Inc. v. Carrera, 601 U.S. ___ (2024), available at https://www.law.cornell.edu/supct/cert/23-217.

[19] Ibid.

[20] Ibid. 

[21] Ibid.

[22] Karch v. Karch, No. 888567992 (Pa. Commw. Ct. 2005), available at https://case-law.vlex.com/vid/karch-v-karch-888567992.

[23] Encino Motorcars, LLC v. Navarro, 584 U.S. ___ (2018), available athttps://www.oyez.org/cases/2017/16-1362.