Thursday, August 18, 2011

FLSA Anti-Retaliation Provision Does Not Protect Applicants

Some cases have simple fact patterns and simple holdings. The Fourth Circuit issued an opinion in one of those cases on Friday. The case is Dellinger v. Sci. Applications Int'l Corp., 10-1499, 2011 WL 3528750 (4th Cir. Aug. 12, 2011).

Natalie Dellinger sued her former employer in July 2009, alleging violations of the FLSA's minimum wage and overtime provisions. In August 2009 she received a job offer from a new employer, Science Applications (aka Defendant in this case). Ms. Dellinger disclosed her lawsuit to Science Applications as part of a form required for security clearance.

Well, guess what? Science Applications withdrew its offer. So, Dellinger sued them for FLSA retaliation. There's just one problem... FLSA prohibits retaliation "against any employee." Per the Westlaw headnote, the Court held:
Only employees can sue their current or former employers for retaliation under the Fair Labor Standards Act (FLSA), and an applicant is not an employee.
The Fourth Circuit affirmed the district court's decision to dismiss the claim.

An interesting note for my Pennsylvania and Third Circuit readers: The Court cites a Third Circuit case that "assumed, without deciding, that an applicant was covered under that Act." (Doyle v. Secretary of Labor, 285 F.3d 243, 251 n. 13 (3d Cir.2002)). It's a complicated case, but the Third Circuit actually noted that the parties did not contend that an applicant was not covered. So the Third Circuit's assumption doesn't have much (any?) precedential value on the issue.

Image: Louis F. Powell Courthouse in Richmond, VA - Home of the 4th Circuit; Public domain as work of U.S. Government.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

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