September 14, 2022

The FLSA, Joint Employers & Unlawful Retaliation

We know the Fair Labor standards Act prohibits retaliation against an employee for engaging in protected activities. This includes testifying or being about to testify in an FLSA proceeding.

What if an employee is about to file a consent to join an FLSA collective action—but no such testimony has yet occurred or been scheduled or subpoenaed? The 3rd U.S. Circuit Court of Appeals recently ruled that the FLSA, “protects employees from discrimination because of an employer’s anticipation that the employee will soon file a consent to join a collective action.”  No surprise, perhaps.

But what if the individual is an applicant and not an employee? An applicant tells you in an interview that he is thinking about joining a class action lawsuit against his former employer. If you don’t want to hire the person on that basis, would that constitute unlawful retaliation under the FLSA? It depends! In 2011, the 4th Circuit Court of Appeals previously held the answer is, “No.” This court declined to answer this question and left it to the lower court to address.

And where does joint employment come into the story?  This one’s tricky.  The applicant alleges his former employer is a joint employer with the company against whom the FLSA lawsuit is being filed. The company to which this applicant applied is a wholly owned subsidiary of that FLSA defendant. The 3rd Circuit left it to the lower court to weave through this “fact-intensive issue.”

Take aways.  Avoid the risk.  First, I wonder how this even came up in the interview.  Train your hiring managers about what questions should/not be asked of applicants.  If an applicant volunteers unsolicited information, train interviewers how to retain control and quickly redirect the conversation. Consider avoiding external, unsolicited information about candidates.  We all know colleagues in the same industry.  We may also chat with our vendors and contractors.  If someone offers to give you free advice about an applicant, pause before you listen. It might be advice best left unspoken.