Eighth Circuit Holds A Prospective Employee Is Not An "Employee" Protected By The Fair Labor Standards Act's Anti-Retaliation Provision

In Liscomb v. Boyce, 954 F.3d 1151 (8th Cir. 2020), the Eighth Circuit considered an issue of first impression—whether a prospective employee is an “employee” protected by the Fair Labor Standards Act’s (“FLSA”) anti-retaliation provision, 29 U.S.C. § 215(a)(3). The Eighth Circuit held the appellant was not entitled to coverage under the FLSA’s anti-retaliation provision as a prospective employee. Liscomb, 954 F.3d at 1154.

Factual Background

Appellant Blake Liscomb (“Liscomb”) was discharged from the Lawrence County Sheriff’s Office. Liscomb, 954 F.3d at 1152-53. Liscomb served as a canine officer in the Lawrence County Sheriff’s Office for more than three years before he was terminated. Id. After his discharge, he then hired a lawyer and began negotiating with the Sheriff’s Office for overtime compensation. Id. Liscomb also learned the Drug Task Force (“DTF”) was seeking a canine officer and alleged state prosecutor Henry Boyce (“Boyce”) had final-hiring authority regarding the job. Liscomb, 954 F.3d at 1153.

Liscomb claimed Boyce retaliated against him by denying him employment with the DTF. Id. Liscomb alleged the local news incorrectly reported he had filed a lawsuit against Lawrence County. Id. Liscomb alleged Boyce stated the “lawsuit was holding Boyce back from employing [Liscomb] with DTF.” Id. The county sheriff spoke with Boyce on Liscomb’s behalf but Boyce allegedly replied he “had reservations about hiring anybody that had a lawsuit against the county.” Id. Liscomb claimed, without alleging any evidence, that he reached an agreement with Lawrence County to settle his claim in return for employment with the DTF yet Boyce still refused to hire him. Id.


The U.S. District Court for the Eastern District of Arkansas found that the FLSA did not protect Liscomb because he was only a prospective employee. Liscomb, 954 F.3d at 1153. The Eighth Circuit Court of Appeals affirmed. Id. at 1154-55.

Liscomb argued the FLSA’s anti-retaliation provision applied even though he was a prospective employee. Liscomb, 954 F.3d at 1154. The Eighth Circuit analyzed the text of the FLSA and held Liscomb was not an employee under the FLSA. Id. The FLSA provides it is unlawful for any person:

“To discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding or has served or is about to serve on an industry committee.”

Id. (quoting 29 U.S.C. § 215(a)(3)). The Eighth Circuit then analyzed the FLSA’s definition of “employee,” which “means any individual employed by an employer.” Id. (quoting 29 U.S.C. § 203(e)(1)). The Eighth Circuit reasoned that Liscomb was not an employee because he was merely a prospective employee and not “employed by an employer,” as required to satisfy the FLSA’s definition and state a claim under the FLSA’s retaliation provision. Id.

The Eighth Circuit relied upon the Fourth Circuit’s holding in Dellinger v. Science Applications, Intl. Corp. to hold that a prospective employee was not an employee protected by the FLSA. Liscomb, 954 F.3d at 1154. The Fourth Circuit in Dellinger also held that a prospective employee was not an employee entitled to the protection of the FLSA’s anti-retaliation provisions. Dellinger v. Science Applications Intl. Corp., 649 F.3d 226, 231 (4th Cir. 2011) (“Because we conclude that the text and purpose of the Fair Labor Standards Act of 1938 link the Act’s application closely to the employment relationship and because the text of the applicable remedy allows for private civil actions only by employees against their employers, we hold that the FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3), does not authorize prospective employees to bring retaliation claims against prospective employers”).


An individual must be an actual employee of an employer in order to attempt stating a claim pursuant to the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3).