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Prospective Employees Cannot Bring FLSA Retaliation Claims Against Prospective Employers


Lipscomb v. Boyce - Eighth Circuit Court of Appeals


Facts:  Blake Lipscomb (“Lipscomb”) worked as a canine officer at the Lawrence County Sheriff’s Office.  After being terminated, Lipscomb hired an attorney and began to negotiate with the county for overtime pay.  Around this time, a local newspaper incorrectly reported that Lipscomb had filed a lawsuit over the matter.  At the time, Lipscomb learned of a canine officer opening with the Drug Task Force (“DTF”).  A state prosecutor, Henry Boyce (“Boyce”), apparently had final authority to hire for the position, according to Lipscomb.  Lipscomb claimed that Boyce refused to hire him because Boyce did not want to hire anyone who had a lawsuit pending against the county.  (Again, there was apparently no lawsuit filed.)  Lipscomb claimed that Boyce told him that the lawsuit was holding Boyce back from hiring him for the DTF position.

Lipscomb subsequently filed suit against Boyce on the grounds that Boyce violated the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”) and violated Lipscomb’s First Amendment rights.  In regard to the FLSA portion of Lipscomb’s claim, the district court dismissed it on the grounds that the FLSA did not provide protections to prospective employees.  Lipscomb appealed to the Eighth Circuit Court of Appeals.

Holding:  (Note, this case brief only analyzes the FLSA portion of Lipscomb’s appeal.)

Recognizing that the applicability of the FLSA’s anti-retaliation provision as to prospective employees had not previously been considered by the Eighth Circuit Court of Appeals, the Court pointed out that a similar case from the Fourth Circuit Court of Appeals and the statutory text of the FLSA provided guidance on the issue.  Parsing the language of the FLSA, the Court noted that “employee” was defined as “any individual employed by an employer.”  Under the language of the FLSA, there was no exception to that definition, for instance in the situation of a prospective employee.  Consequently, since Lipscomb was only a prospective employee for the DTF position, the anti-retaliation provision of the FLSA was inapplicable to his claims against Boyce.

Judgment:  The Eighth Circuit Court of Appeals affirmed the district court’s dismissal of the prospective employee’s claim that a prospective employer violated the anti-retaliation provision of the FLSA on the grounds that the FLSA’s anti-retaliation provision did not apply to prospective employees.

The Takeaway:  This was a case worth highlighting for two reasons:  1) the Eighth Circuit’s recognition that this was the first time it was deciding on the issue and 2) as a reminder to readers that statutory text is paramount.  Had Lipscomb been an actual employee, at a minimum he could have likely survived the motion to dismiss filed by Boyce.  Whether he would have prevailed on the merits of this claim is anyone’s guess, however.

Putting that aside, even if the local newspaper’s story was true that Lipscomb had filed a lawsuit against the county, it appears that would not have altered the Court’s ruling.  Quite simply, as Lipscomb was not an “employee” under the definition provided in the FLSA, he had no grounds to make a claim that a prospective employer retaliated against him in violation of the FLSA.

Majority Opinion Judge:  Chief Judge Smith

Date:  April 3, 2020


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