Retaliation requires employment

The Fourth Circuit, in a divided opinion, holds an applicant for employment who is denied employment  after the prospective employer learned that she had sued her former employer under the FLSA is not an employee subject to the anti-retaliation provisions of the FLSA. A strongly worded dissent by Judge King relies upon, Robinson v. Shell Oil Co., a Title VII decision in which the Supreme Court held employers who retaliate against former employees who engaged in protected activity stated a Title VII retaliation claim. In both cases the issue was whether the statute extended protection in a context where the adverse action was taken against a non-employee. Given the Supreme Court's handling of recent retaliation cases, I think this one might get a look-see.