No FLSA retaliation claim available to prospective employees

The Fourth Circuit, in a divided opinion, holds the retaliation protections of the Fair Labor Standards Act apply only to current and former employees of an employer, not prospective employees. In Dellinger v. Science Applications International the majority finds this result compelled by the statutory language. Relying on Robinson v. Shell Oil Co., 519 U.S. 337 (1997) which held a former employee can state a retaliation claim under Title VII for conduct occurring after termination of the employment relationship, the dissent argues the Plaintiff states a claim. Money quote after the jump.

Ash v. Tyson

Anyone who thinks proving employment discrimination is easy has not read a lot of appellate opinions from the federal fourth circuit. In Ash v. Tyson Foods, after a jury verdict for plaintiffs, the Fourth Circuit affirmed the trial court's grant of a motion for judgement as a matter of law. Seems the court did not think that the term "boy" directed by a white supervisor to a black subordinate evidenced racial animus. A unanimous Supreme Court rejected the Fourth Circuit's rationale and remanded. In a lengthy, but unpublished opinion, the Fourth Circuit has rejected a second jury verdict in favor of plaintiffs. Essentially the court again found that the evidence proffered by plaintiffs was insufficient to support a jury verdict, despite 2 juries concluding otherwise. According to this newspaper report, the first jury was predominantly white and the second jury had only one black juror.