Labor & Employment Law Daily FLSA anti-retaliation provision did not apply to prospective employee
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Wednesday, April 8, 2020

FLSA anti-retaliation provision did not apply to prospective employee

By Ronald Miller, J.D.

The FLSA provides that “the term ‘employee’ means any individual employed by an employer.” Prospective employees do not satisfy this definition.

A former sheriff department officer who alleged that a county prosecutor retaliated against him by denying him a position with a drug task force because he believed that the officer had filed an overtime suit against the county did not state a claim under the FLSA’s anti-retaliation provisions, ruled the Eighth Circuit. Because the text and purpose of the FLSA links the Act’s application closely to the employment relationship, and because the text of the applicable remedy allowed for private civil actions only by employees against their employers, the appeals court concluded that the FLSA’s anti-retaliation provision did not authorize a prospective employee to bring a retaliation claim against a prospective employer (Liscomb v. Boyce, April 3, 2020, Smith, L.).

Overtime demand. The plaintiff served as a canine officer with the sheriff’s department for more than three years. When he was terminated, he retained a lawyer and began negotiating to recover unpaid overtime. After a local newspaper incorrectly reported that he had filed suit against the county, the county prosecutor retaliated against him by denying him a position as a K-9 officer with a Drug Task Force (DTF), and by bringing false criminal charges against him.

Retaliation. The plaintiff filed suit against the prosecutor and two other defendants. arguing that the prosecutor’s retaliatory conduct violated the anti-retaliation provisions of the FLSA and the plaintiff’s First Amendment rights as protected by 42 U.S.C. § 1983. The plaintiff also asserted that the prosecutor violated his due process rights by having others inform the plaintiff’s employers of the criminal charges against him and denied him a name-clearing hearing. (The plaintiff ultimately was acquitted.) Additionally, the plaintiff claimed that the defendants’ conduct constituted a conspiracy under 42 U.S.C. §§ 1985 and 1986.

The district court found that the FLSA did not protect the plaintiff because he was only a prospective employee. It also found that the plaintiff alleged no more than damage to reputation, thus excluding a due process remedy. Additionally, the district court found that he failed to plausibly plead a conspiracy claim.

FLSA retaliation. According to the plaintiff, the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), applies here and proscribed the prosecutor’s actions. The appeals court agreed with the district court’s analysis which concluded that the plaintiff’s application for employment as a K-9 officer with the DTF would not entitle him to retaliation protection from his prospective employer. Section 215(a)(3) makes it unlawful to discharge an employee because he or she filed a complaint. The FLSA provides that “the term ‘employee’ means any individual employed by an employer.” Prospective employees are not “employed by an employer,” so they do not satisfy the FLSA’s definition of an employee. Because the text and purpose of the FLSA links the Act’s application closely to the employment relationship, and because the text of the applicable remedy allowed for private civil actions only by employees against their employers, the FLSA’s anti-retaliation provision did not authorize a prospective employee to bring a retaliation claim against a prospective employer. Because the plaintiff was not an employee under § 215(a)(3), the district court did not err in dismissing his FLSA retaliation claim.

First Amendment retaliation. The district court did not address the plaintiff’s First Amendment retaliation claim. His opening brief purported to jointly analyze that issue with his FLSA, Arkansas Civil Rights Act (ACRA), and Arkansas Minimum Wage Act (AMWA) arguments. However, after making that statement and providing the First Amendment claim elements, the brief focused solely on his FLSA claim. Because there was no meaningful argument in support of this claim in the opening brief, it was waived.

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