The National Federation of Independent Business (NFIB) has filed an amicus brief in the case E.M.D. Sales, Inc. v. Faustino Sanchez Carrera at the United States Supreme Court. The case addresses the standard of proof required to determine if an exemption to employers' overtime pay requirements applies under the Fair Labor Standards Act (FLSA). NFIB collaborated with the U.S. Chamber Litigation Center on this brief.

Beth Milito, Executive Director of NFIB’s Small Business Legal Center, commented on the matter: "The traditional standard provided a straightforward evidentiary burden for determining FLSA exceptions, but the Fourth Circuit’s excessive evidence standard places employers at a distinct disadvantage." She added, "Small employers do not have the resources of their larger counterparts and will be the least able to defend themselves. As is so often the case, small businesses will be disproportionately impacted by this imbalance. NFIB urges the Court to reverse."

The amicus brief presented by NFIB argues three main points: first, that since Congress has never specified a standard for determining burden of proof in FLSA cases, exceptions should be adjudicated under the established “preponderance of the evidence” standard; second, that the “clear and convincing evidence” standard does not support FLSA’s overarching objectives and encourages frivolous claims against employers while ultimately harming consumers; and third, that this heightened standard will disproportionately impact small businesses. Additionally, they argue that adopting the traditional “preponderance of the evidence” standard would not unduly burden employees or prevent them from seeking or recovering overtime pay.

The NFIB Small Business Legal Center aims to protect small business owners' rights in courts across the nation. Currently, NFIB is active in more than 40 cases in federal and state courts as well as at the U.S. Supreme Court.