29 U.S.C. 215(a)(3) prohibits employer retaliation against an employee for complaints alleging FLSA violations (though the contours of what constitutes a protected complaint are still uncertain). An unanswered question has been whether the FLSA’s anti-retaliation protections prohibit a prospective employer from considering an applicant’s FLSA activity arising out of previous employment? Recently, the Court of Appeals for the Fourth Circuit ruled that such protections do not so extend, and that a prospective employer may consider such prior activity in making a hiring decision. Dellinger v. Sci. Applications Int’l Corp., 2011 U.S. App. LEXIS 16635 (4th Cir. Aug. 12, 2011).
In Dellinger, plaintiff applied for employment with defendant SAIC. After a contingent offer of employment was made, plaintiff disclosed to SAIC, in connection with the company’s required background check, her pending FLSA lawsuit alleging minimum wage and overtime violations against a previous employer. The offer of employment subsequently was rescinded by SAIC. Dellinger sued, alleging that the withdrawal was based on her disclosure of her FLSA activity, and that such an employment decision violated Section 215(a)(3)’s prohibition against retaliation by an employer “against any employee.”
In a two-to-one decision, with a dissent from Circuit Judge Robert King, the Appellate Court affirmed the lower court’s dismissal for failure to state a claim, ruling that the scope of the anti-retaliation provision was defined by the FLSA’s definition of an “employee,” contained in 29 U.S.C. § 203(e)(1). Analyzing applicant Dellinger’s claims under this definition –“any individual employed by an employer” –the Court held that “Dellinger could only sue [SAIC] if she could show that she was an employee and that Science Applications was her employer.” Dellinger, 2011 U.S. App. LEXIS 16635 at * 8 (emphasis added). In declining to broaden the scope of “employee” for Dellinger, the Court observed that the “core” purpose of the FLSA was to provide minimum wage and overtime protection to workers, and that permitting FLSA lawsuits from applicants on such a novel theory would impermissibly and inappropriately broaden the statute, even though “‘morally unacceptable retaliatory conduct’ may be involved.”
While Dellinger is a positive development for employers, specifically those located in the Fourth Circuit, making employment decisions based on an applicant’s prior attempt to assert his or her workplace rights and protections (as opposed to based on legitimate business criteria such as the qualifications of the applicant) remains fraught with legal risk.
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For further analysis of this decision by Jackson Lewis see here.