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.