Fourth Circuit Holds Job Applicant Cannot Sue Prospective Employer for FLSA Retaliation

Darrell VanDeusen
Darrell VanDeusen
08/22/2011

Affirming dismissal of an FLSA suit against SAIC, the Fourth Circuit has held that a job applicant who alleged the company withdrew a conditional offer of employment upon learning that she had sued a former employer for wage and hour violations cannot pursue an FLSA retaliation claim against the prospective employer because the Act only permits “employees” to file retaliation claims against their current or former employer.  Dellinger v. SAIC, No. 10-1499 (4th Cir. August 12, 2011).

The FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), prohibits “discrimination” against “any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding” under the Act. The court rejected Dellinger’s argument that “employee” in Section 215(a)(3) should be interpreted to include job applicants, the court said the statutory term “does not exist in a vacuum” but rather is defined elsewhere in the FLSA as “any individual employed by an employer.” The DOL and EEOC had filed amicus briefs supporting Dellinger.

Dissenting, Judge King suggested that the majority ignored the logic of the Supreme Court’s decision in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), where the Court held that the term “employee” as defined in Title VII enabled a former employee to sue a former employer for retaliation.

But writing for the majority, Judge Niemeyer noted that Robinson involved a former employee’s retaliation claim against his former employer, not a retaliation claim by an applicant who never worked for the company. To the extent Robinson is relevant, said Judge Niemeyer, the Fourth Circuit has ruled that the FLSA’s anti-retaliation clause covers employees suing their former employers.

“The issue here,” said Judge Niemeyer, “is whether the FLSA applies to persons who are not yet employees and who have never worked for the employer.  Because Robinson deals only with former employees, it does not speak to the issue in this case.”

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