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Prospective Employee's FLSA Retaliation Claim Dismissed

By Robyn Hagan Cain on August 17, 2011 | Last updated on March 21, 2019

The Fair Labor Standards Act (FLSA) establishes minimum wage and maximum work hours to regulate employer-employee relationships and minimize detrimental work conditions.

The FLSA, however, has one major limitation: a person who files an FLSA retaliation claim against an employer must currently work for the employer or have worked for the employer in the past. The Fourth Circuit Court of Appeals ruled this week that a prospective employee whose employment offer was withdrawn does not have a retaliation claim under the FLSA.

Natalie Dellinger sued her former employer, CACI, Inc., in July 2009 for alleged violations of the FLSA's minimum wage and overtime provisions. Around the same time, she applied for a job with Science Applications International Corporation.

In late August 2009, Science Applications offered Dellinger a job, contingent on her passing a drug test, completing specified forms, and verifying and transferring her security clearance. Dellinger accepted the offer and began the process of satisfying the contingencies.

On the form required for her security clearance, Dellinger was required to list any pending noncriminal court actions to which she was a party, and she listed her FLSA lawsuit against CACI, Inc. Several days after Dellinger submitted her completed form, Science Applications withdrew its offer of employment.

Dellinger, clearly a fan of FLSA causes of action, then sued Science Applications, alleging that Science Applications' motive for withdrawing its offer was "retaliation and unlawful discrimination based on Ms. Dellinger's exercise of her protected right to file an FLSA lawsuit."

Science Applications filed a motion to dismiss, contending that Dellinger's complaint did not state a claim for which relief could be granted because the FLSA's anti-retaliation provision protects only employees, not prospective employees. The district court agreed, and the Fourth Circuit Court of Appeals affirmed.

While the court was sympathetic to Dellinger's argument that disallowing FLSA retaliation claims by prospective employees could permit employers to effectively discriminate against prospective employees' past FLSA claims, it noted that it would be more problematic to open the door for any person who sued an employer in the past to then sue any prospective employer claiming that she was denied employment because of her past litigation.

What do you think? Did the Fourth Circuit Court of Appeals err in its decision? Should courts allow prospective employees' FLSA retaliation claims or would allowing these claims place an unfair burden on employers in the hiring process?

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