PUBLISHED 

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 21-1897

FAUSTINO SANCHEZ CARRERA; JESUS DAVID MURO; MAGDALENO 

GERVACIO, 

 Plaintiffs - Appellees, 

v. 

E.M.D. SALES INC.; ELDA M. DEVARIE, 

 Defendants - Appellants.

Appeal from the United States District Court for the District of Maryland, at Baltimore. 

James K. Bredar, Chief District Judge. (1:17-cv-03066-JKB) 

Argued: March 8, 2023 Decided: July 27, 2023 

Before WYNN, HARRIS, and HEYTENS, Circuit Judges. 

Affirmed by published opinion. Judge Harris wrote the opinion, in which Judge Wynn and 

Judge Heytens joined. 

ARGUED: Eduardo Samuel Garcia, STEIN SPERLING BENNETT DEJONG 

DRISCOLL PC, Rockville, Maryland, for Appellants/Cross-Appellees. Omar Vincent 

Melehy, MELEHY & ASSOCIATES LLC, Silver Spring, Maryland, for Appellees/CrossAppellants. ON BRIEF: Jeffrey M. Schwaber, STEIN SPERLING BENNETT DEJONG 

DRISCOLL PC, Rockville, Maryland, for Appellants/Cross-Appellees. Andrew Balashov, 

MELEHY & ASSOCIATES LLC, Silver Spring, Maryland, for Appellees/CrossAppellants.

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PAMELA HARRIS, Circuit Judge:

The plaintiffs in this case are three sales representatives who alleged that their 

employer, a food-products distributor, did not pay them the overtime wages to which they 

were entitled under the Fair Labor Standards Act (“FLSA” or “Act”). Their employer 

defended on the ground that the plaintiffs fell within the Act’s “outside sales” exemption, 

which excuses overtime pay for employees who work outside the office and whose primary 

duty is making sales.

After a nine-day bench trial, the district court found that the plaintiffs were indeed 

owed overtime pay because their employer had failed to prove, by clear and convincing 

evidence, that they came within the outside sales exemption. The court also awarded 

liquidated damages to the plaintiffs, finding that the employer had not shown objectively 

reasonable grounds for the challenged pay practices. At the same time, the court 

concluded, the plaintiffs had not shown that their employer willfully violated the Act, 

which meant that damages were calculated consistent with the standard two-year statute of 

limitations and not the extended three-year period for willful violations.

Both parties now appeal: The employer challenges the district court’s liability 

finding and its award of liquidated damages, and the plaintiffs cross-appeal the court’s 

willfulness finding and attendant application of the two-year statute of limitations. For the 

reasons given below, we affirm the district court’s judgment in all respects.

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I.

A.

We begin by outlining the statutory and regulatory provisions relevant to this appeal. 

Among the protections the FLSA provides employees is overtime pay, or the right to be 

paid at time and a half for work above the maximum hours set by the Act, generally 40 

hours per week. 29 U.S.C. § 207(a); see Christopher v. SmithKline Beecham Corp., 567 

U.S. 142, 147 (2012). There are, however, multiple exemptions from this requirement, see 

29 U.S.C. § 213, including the “outside sales” exemption, which excludes from § 207(a)’s 

protections any worker “employed . . . in the capacity of outside salesman,” 29 U.S.C. 

§ 213(a)(1). 

Congress did not define the term “outside salesman” in the FLSA. Instead, it 

expressly delegated that task to the Department of Labor (“DOL”). See id. Under DOL’s 

regulations – which no party challenges here – an “outside salesman” is an employee whose 

“primary duty is [] making sales” and who “customarily and regularly” works away from 

the employer’s place of business in performing that primary duty. See 29 C.F.R. 

§ 541.500(a). 

Everyone agrees that the employees in this case, who worked for a company that 

distributes food products to grocery stores, satisfied the second part of this definition, in 

that they regularly worked outside the office while servicing stores on their assigned routes. 

Our focus is on the first part of the definition, limiting the exemption to employees whose 

“primary duty” is the making of sales. DOL’s outside sales regulation incorporates the 

general regulatory definition of “primary duty” as the “principal, main, major or most 

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important duty that the employee performs.” 29 C.F.R. § 541.500(b) (incorporating 

definition at 29 C.F.R. § 541.700). But the regulations also provide guidance specific to 

sales: Work performed “incidental to and in conjunction with the employee’s own outside 

sales or solicitations” – including promotional work – counts as exempt “outside sales 

work.” 29 C.F.R. § 541.500(b) (emphasis added); see 29 C.F.R. § 541.503(a) (discussing 

promotional work). But “promotional work that is incidental to sales made, or to be made, 

by someone else” is not treated as exempt sales work in applying the “primary duty”

standard. 29 C.F.R. § 541.503(a) (emphasis added). 

An employer who violates the FLSA’s overtime-pay requirement is liable for unpaid 

wages and, generally, for an equal amount in liquidated damages. 29 U.S.C. § 216(b). The 

FLSA “plainly envisions that liquidated damages . . . are the norm.” Mayhew v. Wells, 125 

F.3d 216, 220 (4th Cir. 1997). But a court “may, in its sound discretion, award no 

liquidated damages” if “the employer shows to the satisfaction of the court” that its 

violation “was in good faith and that [it] had reasonable grounds for believing” that its pay 

practices complied with the FLSA. 29 U.S.C. § 260. 

One other provision bears on the calculation of damages here. The statute of 

limitations for FLSA claims usually is two years, putting a “limit on employers’ exposure” 

to liability for unpaid wages and liquidated damages. McLaughlin v. Richland Shoe Co., 

486 U.S. 128, 132 (1988). But that period is extended to three years if a plaintiff can show 

that his employer’s violation of the Act was “willful.” 29 U.S.C. § 255(a); see Desmond v. 

PNGI Charles Town Gaming, L.L.C., 630 F.3d 351, 357–58 (4th Cir. 2011).

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B.

1.

The plaintiffs in this case are Faustino Sanchez Carrera, Magdaleno Gervacio, and 

Jesus David Muro, all of whom worked as sales representatives for E.M.D. Sales Inc. 

(“EMD”). EMD is a distributor of Latin American, Caribbean, and Asian food products to 

chain and independent grocery stores, operating in the Washington, D.C., metropolitan 

area. As a direct store delivery vendor, EMD delivers its products directly to grocery stores

(rather than to retail warehouses) and provides supplementary services on-site, including 

stocking and “conditioning” the shelves at those stores. 

Each plaintiff sales representative was assigned to service a “route” of stores. As 

noted above, the parties agree that the plaintiffs spent most of their time out of the office 

and traveling their routes. At their assigned stores, the plaintiffs’ daily tasks included 

restocking the shelves with EMD products, replenishing depleted products, removing 

damaged and expired items from the shelves, and issuing credits to the serviced stores for 

removed items – tasks the plaintiffs described as inventory management. The plaintiffs 

also were responsible for submitting orders from the stores for additional EMD products.

The plaintiffs’ routes included both chain stores and independent groceries. The 

parties agree that servicing chain stores was at least half of the plaintiffs’ job, and the 

district court found that the plaintiffs spent most of their time at those stores. That division 

of labor matters: While the plaintiffs could make at least some of their own sales to the 

independent groceries on their routes, sales opportunities were more limited – to a degree 

hotly contested by the parties – at chain stores, where high-level negotiations between 

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corporate buyers and EMD management generally determined what products the stores 

would carry.

2.

In 2017, the plaintiffs sued EMD and its Chief Executive Officer, Elda Devarie, 

alleging that they were denied overtime wages in violation of the FLSA. According to the 

plaintiffs, they worked roughly 60 hours per week as sales representatives, paid on a 

commission basis instead of hourly and without overtime compensation. The employees 

sought both unpaid overtime wages and liquidated damages, see 29 U.S.C. § 216(b), and 

argued that their back wages and damages should be calculated consistent with the threeyear statute of limitations for “willful” violations of the FLSA, see id. § 255(a). 

The defendants did not dispute that the plaintiffs worked for more than 40 hours a 

week without overtime pay. Instead, the defendants argued that they were not liable for 

overtime wages because their sales representatives qualified as “outside salesm[e]n” under 

§ 213(a)(1)’s exemption. And even if there had been an FLSA violation, they argued, the 

court should decline to award liquidated damages because they had reasonable grounds for 

believing that no overtime pay was due, and it should apply only the standard two-year 

statute of limitations for non-willful violations.

The parties filed cross-motions for summary judgment on these issues, and in a 

thoroughly reasoned opinion, the district court denied the motions. See Carrera v. E.M.D. 

Sales, Inc. (Carrera I), 402 F. Supp. 3d 128 (D. Md. 2019). The court first addressed the 

burden of proof by which the defendants were required to establish their entitlement to the 

outside sales exemption. Relying on circuit precedent, see, e.g., Shockley v. City of 

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Newport News, 997 F.2d 18, 21 (4th Cir. 1993), the plaintiffs argued for a “clear and 

convincing” standard of proof. The defendants, on the other hand, cited the Supreme 

Court’s then-recent decision in Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134 (2018), 

which rejected a canon of construction calling for a narrow interpretation of the FLSA’s 

exemptions, and argued for a lower “preponderance of the evidence” standard. The district 

court agreed with the plaintiffs, explaining that “nothing in the Encino decision relates to 

evidentiary burdens [or] even mention[s] the phrase ‘preponderance of the evidence.’” 

Carrera I, 402 F. Supp. 3d at 146. That left the court bound, it concluded, by “longstanding 

Fourth Circuit precedent” dictating that an employer must prove its entitlement to an FLSA 

exemption by clear and convincing evidence. Id.

The district court then took up what it identified as the “crux of the parties’ dispute”: 

whether the “primary duty” of EMD’s sales representatives was to make sales, and, 

specifically, whether sales representatives could make sales at the chain stores in which 

they spent most of their time. Id. at 136–37, 147–48. According to the plaintiffs, the orders 

they took for EMD products at chain stores were controlled by sales terms already 

negotiated by management; their time was spent only on promotional and inventorymanagement activities – restocking and rearranging products, issuing credits, taking orders 

– that were incidental to sales made at higher levels and therefore outside the scope of the 

exemption. Id.; see 29 C.F.R. § 541.503(a). The defendants took a different view, 

contending that sales representatives retained latitude to make sales at chain stores by 

securing additional space for EMD products. Carrera I, 402 F. Supp. 3d at 147. Because 

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the record gave rise to a genuine dispute of fact on this question, the district court denied 

both parties’ summary judgment motions. Id. at 148–49.

The district court also found that fact disputes precluded summary judgment with 

respect to liquidated damages and the appropriate limitations period. As to liquidated 

damages, the court determined that there was a genuine dispute regarding the objective 

reasonableness of EMD’s pay practices, centered on CEO Devarie’s alleged failure to 

inform herself of the actual job responsibilities of EMD’s sales representatives. Id. at 151. 

And the same record evidence, the court concluded, created a genuine dispute over 

Devarie’s willfulness in failing to pay overtime to sales representatives. Id. at 151–52.

The case then went forward to a nine-day bench trial before the district court. At its 

close, the district court ruled for the plaintiffs on liability, finding that the defendants had 

not proved by clear and convincing evidence that their sales representatives were covered 

by the outside sales exemption. Carrera v. E.M.D. Sales, Inc. (Carrera II), No. JKB-17-

3066, 2021 WL 1060258, at *5–7 (D. Md. Mar. 19, 2021). At chain stores, the district 

court found, the defendants had not shown that the plaintiffs could make their own sales; 

instead, they simply submitted orders to fill space or stock displays “already negotiated by 

EMD’s management.” Id. at *6. And while there might be some room, at some stores, to

sell additional space for EMD products – and “EMD would undoubtedly welcome” those 

efforts – any such work would be “ancillary to sales representatives’ primary 

responsibility” of “keeping shelves full, keeping shelves clean, and placing orders 

promptly,” all incidental to sales “already negotiated and executed” by EMD management. 

Id. at *7. As for independent stores, the court found, while the plaintiffs did make sales in 

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those groceries, the defendants had not established that sales, rather than inventory

management, was their “primary” responsibility. And in any event, the court reasoned, 

because the plaintiffs spent most of their time at chain stores, their “overall primary duty” 

could not be the making of sales. Id.

The court awarded the plaintiffs both their unpaid overtime wages and liquidated 

damages. As to liquidated damages, it found that the defendants had not carried their 

“substantial burden” of showing good faith or objectively reasonable grounds for their pay 

practices under § 260. Id. at *8 (quoting Mayhew, 125 F.3d at 220); see 29 U.S.C. § 260. 

Central to the court’s determination was CEO Devarie’s trial testimony, which revealed 

that the defendants had not investigated and did not have actual knowledge of EMD’s sales 

representatives’ daily job responsibilities. Id. The court declined, however, to extend the 

standard two-year statute of limitations for FLSA claims to three years, finding that the 

defendants’ “error was one of neglect, not recklessness or willful misbehavior.” Id.; see 

29 U.S.C. § 255(a) (extending limitations period for “willful” violations). Here, too, the 

court put great weight on Devarie’s testimony, finding her to be “impermissibly but 

credibly uninformed on the topic of how the FLSA applied” to her company’s sales 

representatives. Id. 

EMD and Devarie timely appealed the district court’s liability finding and its award 

of liquidated damages. The plaintiffs then filed a timely cross-appeal, challenging the 

district court’s finding that the defendants’ FLSA violation was not “willful” for purposes 

of extending the limitations period.

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II.

A.

We turn first to the district court’s liability finding. The defendants challenge that 

finding on one ground only: that the district court erred as a matter of law in holding them 

to a “clear and convincing” standard of proof in showing that their employees were covered 

by the outside sales exemption. We review that question de novo, see Everett v. Pitt Cnty. 

Bd. of Educ., 678 F.3d 281, 288 (4th Cir. 2012), and because we agree with the district 

court, we affirm its liability finding.

Our starting point here is straightforward. As the district court explained, it is well 

established in our circuit that when an employer defends an FLSA action on the ground 

that its employee falls within a § 213 exemption, it bears the burden of proof on that 

question (a point no party contests) and must carry that burden under the “clear and 

convincing evidence” standard. See, e.g., Shockley, 997 F.2d at 21 (“Employers must 

prove by clear and convincing evidence that an employee qualifies for exemption.”); 

Desmond v. PNGI Charles Town Gaming, 564 F.3d 688, 691 (4th Cir. 2009) (“[The 

employer] bore the burden of proving, by clear and convincing evidence, that the 

[employees’] jobs fell within the administrative exemption.” (citation omitted)). 

Undaunted, the defendants present two arguments for why the district court nevertheless 

erred in applying that standard – instead of the lower “preponderance of the evidence” 

standard – to their case. 

We may dispense briefly with the first. According to the defendants, while our court 

may have said “clear and convincing,” it did not “consciously adopt[]” that standard –

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meaning, as we understand it, that the court has not adequately explained its imposition of 

this heightened burden of proof, so its holdings may be overlooked. But that is not how 

panel precedent works. Indeed, we have explained as much in precisely this context: In 

Desmond, too, a defendant employer urged us to depart from our precedent on the burden 

of proof, citing critiques from other circuits. But as we reminded the defendant, “this Court 

unequivocally held that the proper standard is clear and convincing evidence” in Shockley, 

and one “panel cannot overrule the decision of a prior panel.” Desmond, 564 F.3d at 691 

n.3. “[A]bsent contrary law from an en banc or Supreme Court decision,” all parties here 

– the defendants, the district court, and this panel – are bound by Fourth Circuit precedent 

establishing the burden of proof for FLSA exemptions. Taylor v. Grubbs, 930 F.3d 611, 

619 (4th Cir. 2019).

That brings us to the defendants’ second and more substantial argument: that there 

is indeed contrary Supreme Court law superseding our precedent, in the form of the 

Supreme Court’s 2018 decision in Encino Motorcars. There, the Court rejected the 

principle that exemptions to the FLSA should be construed narrowly. 138 S. Ct. at 1142. 

That principle, the Court held, was not a “useful guidepost for interpreting the FLSA.” Id. 

The Act’s “exemptions are as much a part of the FLSA’s purpose as the overtime-pay 

requirement” itself, the Court concluded, and “there is no reason to give them anything 

other than a fair (rather than a ‘narrow’) interpretation.” Id. (alteration omitted). It follows, 

the defendants argue, that there also is no reason for a heightened clear and convincing 

standard of proof, rendering our prior case law “untenable” under Encino Motorcars. See

United States v. Banks, 29 F.4th 168, 175 (4th Cir. 2022) (explaining that panel precedent 

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is not binding if it “subsequently proves untenable considering Supreme Court decisions” 

(internal quotation marks omitted)).

“We do not lightly presume that the law of the circuit has been overturned,” see

Taylor, 930 F.3d at 619, or rendered “no longer tenable,” see United States v. Brown, 67 

F.4th 200, 217 (4th Cir. 2023) (Heytens, J., concurring in the judgment) (outlining “high 

standard” applied to the inquiry). And here, we cannot agree with the defendants that it is 

impossible to reconcile our clear and convincing burden of proof with Encino Motorcars. 

Encino Motorcars is a case about statutory interpretation, and a canon of construction –

now rejected – that mandated a narrow reading of the scope of the FLSA’s exemptions. As 

the district court observed, see Carrera I, 402 F. Supp. 3d at 146, that is distinct from the 

question of what burden of proof an employer bears in proving the facts of its case – here, 

what EMD’s employees actually do on the job, and whether they can make sales at the 

independent stores where they spend most of their time. See Lederman v. Frontier Fire 

Prot., Inc., 685 F.3d 1151, 1156–58 (10th Cir. 2012) (distinguishing between evidentiary 

burdens as to factual questions and statutory-construction principles that govern the legal 

scope of the FLSA’s exemptions); Yi v. Sterling Collision Ctrs., Inc., 480 F.3d 505, 506–08 

(7th Cir. 2007) (same). And because these are distinct concepts, it is entirely possible for 

us to read our precedent “harmoniously” with Encino Motorcars, see Taylor, 930 F.3d at 

619, giving a fair, not narrow, legal construction to the FLSA’s exemptions, see 138 S. Ct. 

at 1142, while also requiring employers to prove the facts that would put their employees

within those exemptions by clear and convincing evidence. 

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Perhaps this court will want to revisit the appropriate evidentiary standard for FLSA 

exemptions in light of the Supreme Court’s reasoning in Encino Motorcars and what can 

be extrapolated from it. But that is a choice that “belongs to the en banc Court rather than 

this panel.” See Brown, 67 F.4th at 217–18 (Heytens, J., concurring in the judgment). At 

present, we are bound to conclude that the district court properly applied the law of this 

circuit in requiring the defendants to prove their entitlement to the outside sales exemption 

by clear and convincing evidence. Accordingly, we affirm the district court’s finding that 

the defendants are liable under the FLSA for unpaid overtime compensation. See Carrera 

II, 2021 WL 1060258, at *9.

B.

We turn next to the parties’ respective challenges to the district court’s damages 

award. As to each, we affirm the district court’s judgment.

First, the defendants contend that the district court erred in awarding liquidated 

damages after finding that they had not acted in good faith or demonstrated reasonable 

grounds for believing their pay practices complied with the FLSA. See Carrera II, 2021 

WL 1060258, at *8. We review an award of liquidated damages under the FLSA only for 

an abuse of discretion. McFeeley v. Jackson St. Ent., LLC, 825 F.3d 235, 245 (4th Cir. 

2016). Indeed, liquidated damages are “the norm” under the FLSA, see Mayhew, 125 F.3d 

at 220, and district courts are expressly vested with discretion when it comes to making 

exceptions: Only if an employer can “show to the satisfaction of the court” that he acted 

in “good faith” or had “reasonable grounds” for believing he was in compliance with the 

FLSA may the court, “in its sound discretion,” deny liquidated damages. 29 U.S.C. § 260; 

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see also Calderon v. GEICO Gen. Ins. Co., 809 F.3d 111, 132 (4th Cir. 2015). The 

employer’s threshold burden, we have explained, is a “substantial” one, Mayhew, 125 F.3d 

at 220, and even if he meets it, liquidated damages still may be awarded at the district 

court’s discretion, 29 U.S.C. § 260.

Here, after a nine-day bench trial, the district court concluded that the defendants 

had not carried their substantial burden of establishing good faith or objectively reasonable 

grounds for believing that their sales representatives were excepted from the FLSA’s 

overtime-pay requirement. Carrera II, 2021 WL 1060258, at *8. Critical to this 

determination was the court’s finding, based on Devarie’s testimony, that the defendants 

had failed to investigate the daily tasks of EMD’s sales representatives and, as a result, 

lacked actual knowledge of their job responsibilities. Id. The court recognized that the 

employees’ compensation structure was negotiated by their union and that Devarie had 

consulted with accountants regarding the FLSA. But because the defendants had not 

informed themselves of their employees’ daily activities, the court reasoned, they could 

not have had “objectively reasonable grounds” for believing that the plaintiffs’ actual job 

duties put them within the FLSA’s outside sales exemption. Id. 

We see no basis for finding an abuse of discretion here. There is ample evidence in 

the record to support the court’s finding that the defendants had only an “aspirational” and 

not a “concrete” sense of what their sales representatives did and, specifically, their ability 

to make sales at chain stores. Id. And the district court was within its discretion in 

determining that without that knowledge, the defendants were not in a position to make a 

good faith or objectively reasonable judgment that the plaintiffs qualified as “outside 

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salesm[e]n” under the FLSA’s exemption. Cf. McFeeley, 825 F.3d at 245 (“If mere 

assumption amounted to good faith and reasonable belief of compliance, no employer 

would have any incentive to educate itself and proactively conform to governing labor 

law.”).

The plaintiffs, for their part, argue that the district court erred in declining to extend 

the FLSA’s standard two-year limitations period to three years, based on its finding that 

the defendants’ FLSA violation was not “willful.” See 29 U.S.C. § 255(a). Here, the 

burden is on the plaintiffs to show willfulness, meaning that the employer “either knew or 

showed reckless disregard for the matter of whether its conduct was prohibited by the 

FLSA.” Desmond, 630 F.3d at 358 (alteration omitted). A district court’s finding that an 

employer did not act willfully is a finding of fact, not to be disturbed unless clearly 

erroneous. Martin v. Deiriggi, 985 F.2d 129, 136 (4th Cir. 1992). And when a willfulness 

finding is “tied closely to a trial court’s witness credibility determinations, appellate courts 

give great deference to the trial court’s factual findings.” Id.

This is just such a case. Again, the district court relied critically on CEO Devarie’s 

testimony, which it credited, to find that the defendants acted unreasonably but not willfully 

in violating the FLSA. Devarie, the district court concluded, was “impermissibly but 

credibly uninformed” on the application of the FLSA to her sales representatives; her 

failure to inform herself was negligent, but it did not amount to reckless or willful 

misbehavior. Carrera II, 2021 WL 1060258, at *8. Giving “great deference” to that 

finding, see Martin, 985 F.2d at 136 – made by the district court after its “careful 

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consideration of the full trial record,” see Carrera II, 2021 WL 1060258, at *8 – we find 

no clear error and affirm the district court’s determination.

Finally, to the extent the parties each argue that the district court’s findings as to 

good faith and reasonableness (for liquidated damages) and willfulness (for the limitations 

period) are in conflict, they are mistaken. To be sure, a finding that a defendant did not act 

willfully in violating the FLSA might support a determination that the defendant acted 

reasonably and in good faith, see, e.g., Roy v. County of Lexington, 141 F.3d 533, 548 (4th 

Cir. 1998), and, of course, the opposite is also true. But the two need not go hand in hand. 

It can be the case both that an employer was unable to show an objectively reasonable basis 

for its pay practices and that the employer did not intentionally or recklessly underpay. 

Desmond, 630 F.3d at 358 (explaining that negligent, i.e., unreasonable, conduct “is 

insufficient to show willfulness”); see also Braxton v. Jackson, 782 F. App’x 240, 245 (4th 

Cir. 2019) (per curiam) (affirming district court finding of lack of good faith despite jury 

finding that defendants did not act willfully). Indeed, the FLSA clearly contemplates as 

much, establishing as the default rule both the award of liquidated damages – predicated 

on the absence of objective reasonableness – and a two-year statute of limitations –

predicated on a non-willful violation. Accordingly, we see no inconsistency in the district 

court’s rulings on these matters.

Finding no reversible error regarding the district court’s award of liquidated 

damages or application of the two-year statute of limitations, we affirm as to both.

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III.

For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED

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