No Cause Of Action Against Prospective Employer For FLSA Retaliation

On August 12, 2011, the United States Court of Appeals for the Fourth Circuit concluded that a plaintiff has the right to sue only her current or former employer for retaliation under the Fair Labor Standards Act (“FLSA”) — not a prospective employer. More after the break.

Natalie Dellinger sued Science Applications International Corporation for retaliation under the FLSA. She alleged that the company refused to hire her after it learned that she had sued her former employer, CACI, Inc., under the FLSA’s wage and overtime provisions. Dellinger charged that Science Applications’s motive for withdrawing its previous job offer was retaliation for her exercising her protected right to file an FLSA lawsuit.

The district court dismissed Dellinger’s suit, finding that the FLSA’s anti-retaliation provision protects only employees and not prospective employees. The Fourth Circuit agreed, stating the following:

Although [Dellinger] was an applicant for employment with Science Applications, and her application had been approved on a contingent basis, she never began work. Section 203(g) provides that “employ” means “suffer or permit to work.” Therefore an applicant who never began or performed any work could not, by the language of the FLSA, be an “employee.”

To bolster her case, Dellinger argued that the FLSA makes it unlawful for “any person” to retaliate against any employee, and that because Science Applications is a “person,” it is prohibited from retaliating. The Fourth Circuit disagreed – an employee may only sue employers for retaliation as explicitly defined in Section 216(b) of the FLSA. The provision addressing “persons” in the FLSA prohibits other acts separate from retaliation – transporting goods, for example, produced by employees who are paid in violation of the Act.

The Court also noted that the FLSA was intended primarily as a minimum wage and maximum hour law, with the anti-retaliation provision as a subpart of that broad paradigm – not as a free-standing protection. The employment relationship is inherent to the purpose of the entire law and its substantive provisions.

Dellinger finally urged the Court to extend the FLSA’s definition of employee to protect job applicants, relying on other statutes that protect potential employees – the Energy Reorganization Act, the National Labor Relations Act, the Occupational Safety and Health Act, and the Pipeline Safety Improvement Act. The Court differentiated the terms and definitions in the FLSA from the named statutes, and it concluded that the text and purpose of the FLSA tie closely to the employment relationship, not authorizing prospective employees to bring civil action against prospective employers. The dissent, however, would have adopted Dellinger’s position.

A complete copy of the opinion can be found here. Dellinger’s attorney has indicated that a petition for rehearing en banc will be filed with the 4th Circuit.