A federal appeals court recently held that a job applicant cannot sue a prospective employer for retaliation under the Fair Labor Standards Act (FLSA). 

In the case, Dellinger v. Science Applications International Corp., the employee had to complete a security clearance form after a conditional offer of employment.  The form asked the applicant if she had been involved in any non-criminal court actions.  The applicant disclosed she had sued her former employer for wage/hour violations.  The employer then withdrew the offer of employment. As a result, the job applicant sued for retaliation.

In ruling that the applicant did not have a claim, the Fourth Circuit Court of Appeals (the federal appeals court for appeals from Maryland, North Carolina, South Carolina, Virginia and West Virginia), explained that the anti-retaliation provision of the FLSA applies only to actual employers, not prospective employers.  The Court recognized the compelling argument of the job applicant but still held that extending the law as requested would go beyond the law’s plain language.  An applicant who never began or performed any work could not, by the language of the FLSA, be an ’employee,’ the Court said.

A strong dissent indicated that, in a similar case under Title VII, the U.S. Supreme Court had determined otherwise. 

A few takeaways:

  • An employer should not be quick to change its practice and now ask all applicants if they have sued any former employers for wage/hour violations.  The question is a close one (panel here was split 2-1).  There is little authority from other federal circuits, although two United States District Courts (Colorado and South Carolina) have directly addressed the issue and reached the same conclusion.  Additionally, courts have also consistently held that the FLSA protects “former” employees (as opposed to prospective applicants) from retaliation, which would indicate a willingness to expand retaliation protection outside the immediate employment relationship.  Given this fact and the relatively few applicable court decisions, caution remains a wise approach until this issue is resolved by the U.S. Supreme Court. 
  • For the time being, however, in these jurisdictions (states identified above), this information (i.e., that the applicant has sued a former employer for wage/hour violations) can be used to withdraw a job offer,
    • UNLESS the state law provides protection for withdrawal of a job offer
    • Note that the job applicant did not sue under any such state statute or theory.
  • This case will likely find itself before the Supreme Court.  If so, look for a strong debate about whether the Court, or the Congress, should extend the law as requested by the job applicant.