If you find out during the hiring process that an applicant blew the FLSA whistle on his or her former employer, you can probably pull the plug on that applicant, EVEN if you already sent him or her an offer letter (at least in the 4th Circuit).
The 4th U.S. Circuit Court of Appeals ruled that plaintiff Natalie Dellinger could not file an FLSA retaliation suit against Science Applications International Corp. (SAIC) when the company withdrew its employment offer after learning that she had sued a former employer for minimum wage and overtime violations of the FLSA. The case is Dellinger v. Science Applications International Corp.
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The old lawsuit came up when Dellinger filled out a form required for her security clearance. That form required her to “list any pending noncriminal court actions to which she was a party.” She did, and her employment offer was withdrawn shortly thereafter.
The FLSA’s anti-retaliation provision makes it unlawful to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding … or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.” It’s is intended to strengthen employees’ ability to assert their FLSA rights without fear of punishment by their employer.
But a lower district court had already agreed with SAIC that Dellinger never worked a day for the company and so was not an “employee” as defined in the FLSA — and its “anti-retaliation provision does not cover prospective employees.”
Dellinger cried foul, saying the FLSA’s anti-retaliation provision protects any employee that has been the victim of FLSA retaliation by “any person,” including future employers. But the appeals court clearly noted that “the FLSA gives an employee the right to sue only his or her current or former employer and … a prospective employee cannot sue a prospective employer for retaliation.”
Dellinger pointed out that there are other statutes that cover applicants as well as employees, including the Energy Reorganization Act, the National Labor Relations Act and the Occupational Safety and Health Act.
The court added that while it was “sympathetic to Dellinger’s argument that it could be problematic to permit future employers effectively to discriminate against prospective employees for having exercised their rights under the FLSA…we have been unable to find any case that extends FLSA protections to applicants or prospective employees.”