Dunlop v. Carriage Carpet Co., 75-2309

• Citation: 548 F.2d 139
• Decision Date: 05 January 1977
• Docket Number: No. 75-2309,75-2309
• Parties: 22 Wage & Hour Cas. (BN 1481, 13 Empl. Prac. Dec. P 11,387, 80 Lab.Cas. P 33,465 John T. DUNLOP, Secretary of Labor, Appellant, v. CARRIAGE CARPET COMPANY, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 139

548 F.2d 139

22 Wage & Hour Cas. (BN 1481, 13 Empl. Prac.

Dec. P 11,387,

80 Lab.Cas. P 33,465

John T. DUNLOP, Secretary of Labor, Appellant, v. CARRIAGE CARPET COMPANY, Appellee.

No. 75-2309.

United States Court of Appeals Sixth Circuit.

Argued Oct. 5, 1976.

Decided Jan. 5, 1977.

T. J. Pethia, U. S. Dept. of Labor, Cleveland, Ohio, Donald S. Shire, William J. Kilberg, Carin Ann Clauss, Jacob I. Karro, John K. Light, Jr., U. S. Dept. of Labor, Washington, D.C., for appellant.

Morlee A. Rothchild, Sheldon R. Hartman, Shapiro, Persky, Stone & Marken, Thomas J. Scanlon and Douglas K. Cooper, Cleveland, Ohio, for appellee.

Before PHILLIPS, Chief Judge, and McCREE and LIVELY, Circuit Judges.

PHILLIPS, Chief Judge.

The issue presented by this appeal regarding the coverage of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq. appears to be a question of first impression. The District Court held that a "former employee", voluntarily separated from his employer, is not an "employee" protected by the anti-discrimination provisions of § 15(a)(3) ¹ of the Act. We disagree with the District Court's narrow reading of the Act and reverse the summary judgment granted to defendant.

I.

On October 8, 1973, David Bellian applied to the Midland-Ross Corporation in Cleveland, Ohio, for employment as a security guard. Bellian was interviewed by the firm's personnel manager and by the captain of the guards. He was informed that his application was "promising" and was asked by the captain of the guards whether he could start on October 15.

Before October 15, Bellian was called back to Midland-Ross for a second interview. At this second interview a different personnel manager told Bellian that Carriage Carpet Company (Carriage), a former employer of Bellian, had informed Midland-Ross that Bellian, while working for Carriage, had agreed to do some work at straight-time rates, but thereafter had filed a complaint against Carriage with the Department of Labor for not paying overtime rates. Bellian attempted to explain to the Midland-Ross representative that Carriage had misrepresented the facts of the incident and the Labor Department charge. The Midland-Ross personnel manager expressed sympathy with Bellian's predicament, but told Bellian that Midland-Ross would not hire him. The personnel manager suggested that Bellian contact the Department of Labor because the information from Carriage would affect Bellian's chances of getting employment elsewhere.

Bellian contacted the Department of Labor and on August 8, 1974, the Secretary filed the present action against Carriage under the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., alleging in part:

Defendant has violated, and is violating, the provisions of section 15(a)(3) of the Act by discriminating against David A. Bellian, a former employee of defendant, by reporting and disclosing, on or about October 11, 1973, to a prospective employer of said employee that the said David A. Bellian had filed a complaint against defendant under or relating to the Act, thereby causing said prospective employer to refuse to hire the said David A. Bellian.

Carriage responded to the Secretary's complaint with a motion to dismiss. Carriage attached to the motion an affidavit of its president, Charles Kovacic, stating that David Bellian had voluntarily left the employ of Carriage Carpet Company on or about May 1, 1973. Carriage argued in support of its motion that on the date of the alleged discrimination October 11, 1973 Bellian had been voluntarily separated from his employment with Carriage for over five months, and as a mere "former employee" could not claim the protection afforded "employees" by the Fair Labor Standards Act of 1938.

The District Court, treating Carriage's motion and affidavit as a motion for summary judgment, held that the term "employee" as used in the Fair Labor Standards Act "is not broad enough to cover a former employee voluntarily separated from employment." The District Court entered summary judgment for Carriage. The Secretary appeals.

The sole question before this court is whether the District Court correctly determined that a former employee, voluntarily separated from his job, is not within the class of employees protected from employer discrimination by Section 15 of the Fair Labor Standards Act of 1938.

II.

Section 15 of the 1938 Act, quoted in part in note 1, purports to protect from discharge or discrimination "any employee" who files a complaint or institutes a proceeding under or related to the Fair Labor Standards Act of 1938, as amended. "Employee" is defined as follows in Section 3(e) of the Act (29 U.S.C. § 203(e)(1) ):

§ 203. DEFINITIONS

As used in this Act

(e)(1) . . . the term "employee" means any individual employed by an employer.

Section 203(e)(1) was amended by Congress in 1974, after the acts complained of by appellant, but before the filing of the complaint herein. Act of April 8, 1974, Pub.L. No. 93-259, § 6(a)(2), 88 Stat. 55, 58, amending 29 U.S.C. § 203(e)(1). Prior to the 1974 amendment, Section 3(e) (29 U.S.C. § 203(e)) read in pertinent part as follows:

(§ 203) (e) "Employee" includes any individual employed by an employer. (emphasis supplied)

In the District Court, appellant argued that the use of the word "includes" in the definition of employee in effect at the time of the events complained of indicated Congressional intent to enact a broad definition which would encompass "former employees" under the facts of this case.

The House reports on the 1974 amendments to § 203(e) do not explain why Congress substituted "means" for "includes" in the definition of employee. See H.R.Rep. No. 913, 93d Cong., 2d Sess. (1974); and H.R.Conf.Rep. No. 953, 93d Cong., 2d Sess. (1974); both reproduced in 1974 U.S.Code Cong. & Ad.News, at 2811 et seq. It is clear from these reports, however, that the 1974 amendments were not intended to restrict or diminish the coverage of the Fair Labor Standards Act of 1974. The introduction to House Conference Report No. 93-953 states that one of the purposes of the 1974 amendments was " . . . to expand the coverage of the Act, . . ." See 1974 U.S.Code Cong. & Ad.News, at 2862.

Under the view we take of the Fair Labor Standards Act of 1938, and in light of the Congressional Reports with respect to the 1974 amendments, we attach no particular significance to the substitution of "means" for "includes" in the definition of employees for purposes of determining whether former employees are within the coverage of the Act.

Appellee's principal contention on this appeal is that the term " employee" in § 203 is a "word of art" having a special meaning under the statutory definition quoted above. In declining to read the § 203 definition broadly, the District Court essentially adopted this view by holding that a " former employee," voluntarily separated from his employment, does not fall within a literal reading of § 203 because one voluntarily separated from an employer is not technically "employed by an employer." In view of the broad purposes and clear policies of the Fair Labor Standards Act, and cognizant of the practicalities of enforcement of the Act, we reject the narrow reading urged by appellees and hold that a former employee, though voluntarily separated from his employer, is protected from discrimination by his former employer under 29 U.S.C. § 215(a)(3).

We find no decision dealing with this specific question. Most cases discussing the definition of "employee" under the Fair Labor Standards Act do so in the context of determining whether an employer-employee relationship exists for purposes of applying the substantive wage and hour provisions of the Act. See, e. g., Dunlop v. Dr. Pepper-Pepsi Cola Bottling Co., etc., 529 F.2d 298 (6th Cir. 1976). These cases are persuasive as to the approach which should be taken in interpreting the general definitions contained in the Act.

Further, we are guided by decisions defining the boundaries of " employee" as that term is used in the Social Security Act, ² the National Labor Relations Act, ³ and in Title VII of the Civil Rights Act. ⁴ As the Supreme Court noted nearly thirty years ago in Rutherford Food Corp. v. McComb, 331 U.S. 722, 723-24, 67 S.Ct. 1473, 1474, 91 L.Ed. 1772 (1947):

The Fair Labor Standards Act of 1938, enacted June 25, 1938, is a part of the social legislation of the 1930's of the same general character as the National Labor Relations Act of July 5, 1935, 49 Stat. 449, and the Social Security Act of August 14, 1935, 49 Stat. 620. Decisions that define the coverage of the employer-employee relationship under the Labor and Social Security acts are persuasive in the consideration of a similar coverage under the Fair Labor Standards Act. See Labor Board v. Hearst Publications, 322 U.S. 111, 64 S.Ct. 851, 88 L.Ed. 1170; United States v. Silk, ante, p. 704, decided today.

See Walling v. American Needlecrafts, 139 F.2d 60, 63 (6th Cir. 1943). See also Pettway v. American Cast Iron Pipe Company, 411 F.2d 998, 1005-06 (5th Cir. 1969), and Rutherford v. American Bank of Commerce, 11 EPD P 10,829 (D.N.M., filed Mar. 19, 1976), discussing the usefulness of analogy to the National Labor Relations Act and the Fair Labor Standards Act in Title VII actions.

The Fair Labor Standards Act of 1938 was enacted by Congress to be a broadly remedial and humanitarian statute. The Act was designed to correct "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers . . ." 29 U.S.C. § 202(a). In Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 706-07, 65 S.Ct. 895, 902, 89 L.Ed. 1296 (1945), the Supreme Court reviewed the Congressional history of the Act and emphasized the broad scope of Congressional intent:

The legislative history of the Fair Labor Standards Act shows an intent on the part of Congress to protect certain groups of the...