No Remedy for FLSA Retaliation?

 I can usually count on the Fourth Circuit Court of Appeals come through for employers on close cases. A recent retaliation decision by an applicant who filed FLSA wage claims against a previous employer bears this out. Whether it will survive further review is something that will bear watching over the next 12 months.

In this case, the Fourth Circuit was confronted with a situation where a job applicant was turned down by a perspective employer after the company learned she filed an FLSA lawsuit against her previous boss. The applicant alleged that the company's refusal to hire her violated the FLSA's anti-retaliation provision, a not unreasonable claim given that most employment statutes protect job applicants in the same way as they protect current or former employees. Denial of a job opportunity for an improper reason is just as much as an adverse employment action as demoting or terminating a current employee.

Unfortunately the FLSA specifically defines employee as "any individual employed  by an employer" (emphasis added). The Fourth Circuit, following the logic of the district court, interpreted this language literally in finding that there is no protection under the statute for someone who is not "employed".

There was a strong dissent filed in this case, and the US Department of Labor has petitioned for a rehearing. My guess is that this case may ultimately end up before the Supreme Court if it is not reversed following the rehearing. There is string of strong anti-retaliation decisions from the Supremes that have significantly broadened the scope of retaliation claims over the past few years. This case might be one that provides the Court with some opportunity to limit those opinions given the plain language of the FLSA.