Legal Docket: Weekends, exhaustion, procedure, and overtime pay

MARY REICHARD, HOST: It’s The World and Everything in It for this 23rd day of December, 2024. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. We’re down to our final days in the Year End Giving Drive.

It’s been quite a year for us at WORLD.

AUDIO: The flooding is devastating.

At the end of September, we were chased out of our home base in Asheville, North Carolina, in tiny Biltmore Village, as the remnants of gulf hurricane Helene stalled out and overwhelmed a flood-prone river nearby, the Swannanoa.

The local TV station is WLOS:

WLOS: Waiting to see the damage in Biltmore Village. / Biltmore Village is underwater / so this should all still be treated as an active, natural disaster. / We've already planned. 
We have National Guard soldiers. We have swiftwater rescue teams. / At three this afternoon, the Swannanoa River crested in Biltmore more than five feet over the previous record. / And it didn't take a lot of wind to knock these trees down. / 
All roads in western North Carolina should be considered closed. / Now we want to emphasize this storm is far from over. Historic flooding, high winds, and more heavy rain / as Helene makes its way to the mountains. / We're gonna go live now to Gracie Matisse / 
there in Biltmore Village. / Look at how fast that water is rushing over there. / I mean, we just saw this water carry an entire propane tank. / 
Oh, wow, look at that. That is a dumpster, uh, that is just being carried by the water, so powerful, powerful water there. / We've been constantly having to move our car up to get to higher ground
.

Higher ground, indeed. Our friends at Evangelism Explosion, situated as they are on higher ground in Western North Carolina, offered to share space with us… office space, studio space, and several of our people are still using those facilities.

Thankfully, when disaster struck, we did have enough staff off-site that we didn’t miss a beat. We just kept publishing, we stayed on the air, we didn’t miss even a single deadline.

When we put out that S-O-S call for help the Monday after the flood, many listeners and readers and viewers of WORLD were kind to respond with such generosity that we had to ask you to stop after just a few days!

We had collected what we thought we would need to replace destroyed equipment and take care of emergencies, and we are so grateful for that.

REICHARD: Now more than two months later, here we are in the closing days of our Year End Giving Drive.

We have the same needs we always have in bringing you sound journalism grounded in facts and Biblical truth.

If you’re a regular giver and you gave in October, again, thank you, we’re grateful. But we are asking, if you can, still to participate in the Year End Giving Drive.

EICHER: That’s exactly it. October was asking simply to cover immediate emergency expenses due to the destruction of our offices and studios.

Our Year-End campaign is about the resources to continue to do the job. So if you can help, we do still need you.

Please visit wng.org/YearEndGift.

REICHARD: Well, tomorrow’s Christmas Eve. So, imagine you had an important legal deadline that fell on that day, or Christmas Day, or even on a weekend. You know the government’s closed. But would you assume the real deadline was the next business day?

ROBERTS: We'll hear argument first this morning in Case 23-929, Velazquez versus Garland.

This case is about exactly that. And given that the case is at the U.S. Supreme Court, it’s not such a straightforward set of questions.

EICHER: Hugo Monsalvo Velazquez came to the U.S. as a teen in 2005, from Mexico. When U.S. authorities began the process of deportation, they also granted him “voluntary departure”—meaning, “you can do this the easy way or we can do it the hard way.”

Part of the hard way was a 60-day deadline on the easy way. Day 60 was a Saturday.

Here’s lawyer Gerard Cedrone:

CEDRONE: The 60-day time period in the voluntary departure statute works like any routine legal time period. When the last day falls on a weekend or holiday, the period continues to run until the next business day.

His point was that a long-standing legal principle should apply: if a deadline falls on a weekend, you get until the next business day.

But the government’s lawyer wasn’t having it. Here’s Assistant Solicitor General Anthony Yang:

YANG: Section 1229c's maximum 60-day period for voluntary departure is not extended when the last day falls on a holiday or weekend. The requirement to arrange for travel and to depart the United States involves primary conduct in the real world. Nothing prevents departure on weekends or holidays when many prefer to travel. And unlike contexts involving the timing of litigation-based or administrative acts before courts or agencies, no tradition by rule or otherwise potentially exists for extending statutory deadlines for primary conduct.

REICHARD: Justice Neil Gorsuch injected some levity into an otherwise dry debate in this exchange with Yang:

GORSUCH: But your regulation is clear. It says “all,” “any.” And you’ve had this regulation for a very long time, and normally, the government really likes its regulations. It used to come up here and say we have to defer to them. Now it comes up here and says we should give them great respect when they’re contemporaneous and long-standing, which check both those boxes here, right? So you’re running from your regulations. I mean, it’s sort of like garlic in front of a vampire. You don’t want to have anything to do with them.

Justice Samuel Alito pointed to practicalities:

ALITO: Why can't they say: You've got to get out of the country in 60 days? You can get out of the country just as easily on a Saturday or a Sunday as you can on a Monday.

EICHER: Still, most justices seemed sympathetic to Velazquez. He’s lived in the U.S. for 20 years, he runs an auto-detailing business, and has two kids who were born here. There’s no record of criminality.

REICHARD: Maybe we need to make the obvious point that he’s still fighting this deportation, and has been since he basically defied the order to leave back in 2011. He’s been fighting in court ever since. Lower courts have ruled in contradictory ways on this basic question of the deadline, so of course it wound up at the Supreme Court.

Okay, this next one I’ll just mention very briefly: Williams v Washington. This one asks about exhaustion. Not the Christmas-shopping kind of exhaustion, but rather the legal hoops you have to jump through before suing in court. Exhausting all those.

The case asks whether it’s fair to demand state processes be fully exhausted before heading to federal court … even when the state is maddeningly slow to process those claims.

EICHER: That was brief, not exhausting at all.

On to the next dispute, which may yet prove exhausting

Nvidia Corporation versus E. Ohman. The court dismissed the case after oral argument. And that was no surprise really, given how the justices kept making the same point over and over, like this one from Justice Sonia Sotomayor:

SOTOMAYOR: I'm not actually sure what rule we could articulate that would be clearer than our cases already say.

This case involved shareholders who claimed that the chip maker Nvidia misled them. They say the company concealed how much it relied on sales from crypto-mining, and not its core business of gamers.

And that affected the value of the stock. Nvidia is publicly traded.

The high court likes to resolve big legal questions, so its rulings apply down the line to all sorts of other cases. But sometimes cases are just too fact-specific and seem not to have broad applicability. That’s this case.

So, the justices punted the dispute back to the trial court to sort out.

REICHARD: OK, moving right along to case four, our final one today: E.M.D. Sales v Carrera. It’s a case about overtime pay and who gets it.

The question is around the standard of proof: Is it enough for bosses to show workers “probably” don’t qualify for overtime pay? Or do they have to put on “clear and convincing” evidence?

The company says it needs only tip the balance to 51% certainty: a preponderance of the evidence. Here’s its lawyer, Lisa Blatt:

BLATT: 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 34 exemptions under the Fair Labor Standards Act….This court has reserved the clear and convincing standard to deprivations by the government of critical rights that don’t involve money damages.

EICHER: Here the workers were sales reps for a company that distributes groceries in the Washington, DC, area.

Management negotiates the really big sales with grocers, so the workers here mostly restocked shelves, took care of in-store displays, and stopped in on grocers on their routes.

They made occasional sales, but that wasn’t a major part of the job.

Outside sales jobs are considered exempt from overtime pay. Given their actual job duties, and the fact they often put in 60 hours per week, the workers sued under the Fair Labor Standards Act, arguing they really aren’t exempt from overtime pay.

REICHARD: Their lawyer argued that employers have to meet a tougher standard of proof, because fair wages are a big deal. Here’s lawyer Lauren Bateman:

BATEMAN: Here, application of the clear and convincing standard of proof is necessary to carry out the explicit public purpose of the Fair Labor Standards Act….The preponderance of the evidence standard falls short of that purpose because it allocates the risk of factual error equally between employers and workers. But the FLSA is not your typical civil statute where only individual monetary damages are at stake, and so, as far as the public is concerned, the interests of plaintiff and defendant are in equipoise. Instead, it's a statute that protects both the worker's right to a fair day's pay for a fair day's work but also the public's right to an economic system that doesn't depend on and inexorably lead to the impoverishment and immiseration of the American worker. …It's also appropriate because employers are likely to possess and control evidence relevant to these kinds of factual determinations. And employers can and sometimes do manipulate evidence in their favor, such as job descriptions or titles. Unchecked, these factors lead to disproportionate errors of fact finding in favor of employers. Thus, it's sensible to insist that where an employer seeks to prove that an employee is exempt from these protections, the employer must do so clearly and convincingly.

Justice Clarence Thomas had a pointed question:

THOMAS: Why should the FLSA be treated differently from discrimination cases?

EICHER: Justice Alito took it further. Why suppose proof in overtime disputes is more important than proof in other disputes over money?

ALITO: Government provides lots of benefits that are critically -- monetary benefits that are critically important to some people. Would you have us say that none of those can rise to the level of importance that is present when what's involved is overtime payments under the FLSA?

BATEMAN: I --I think that necessarily this is a --this is a question left to the judiciary to ascertain in a case-by-case basis, but --but --

ALITO: Yeah. Well, how would we go about doing that? Say it's a determination of welfare benefits. Is that less important than this?

BATEMAN: Certainly not. But I think one operative question is whether those rights are waivable by the individual. And because they're not waivable in the FLSA context, that is an indicator that there's a broader remedial scheme at issue than just individual monetary damages.

Six federal circuits already use that “more likely than not” preponderance standard the employer wants.

But the Fourth Circuit where this case originates requires employers to meet that higher standard of proof, clear and convincing. Something like 75% level of certainty.

REICHARD: This case has bounced around in the courts for 7 years. And it matters way beyond just the facts here. However the court decides about exempting employees in sales positions, it’ll affect all other exemptions within the Fair Labor Standards Act as well. That affects about 10 million businesses in the country … employing more than 140 million people.

And that’s this week’s Legal Docket!

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