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Have you ever wondered if you can reject applicants if you discover they previously sued their employer for wage and hour violations?  In our litigious society, you may have worried that you would be sued for retaliation.  Until recently we would have agreed.  The Fourth Circuit just ruled that a prospective employee did not have a claim for retaliation under the Fair Labor Standards Act (“FLSA”) because the FLSA is meant to protect the employee-employer relationship. 

In this case, Natalie Dellinger applied for a job with Science Applications.  The company offered her a job, contingent upon completing a drug test and a security clearance.  On the security clearance form, Dellinger disclosed she had a pending lawsuit against her former employer for FLSA violations.  Shortly thereafter, the company withdrew their job offer.  Dellinger sued under the FLSA’s anti-retaliation provision, claiming the company was retaliating against her for her pending FLSA lawsuit.

The Fourth Circuit agreed with the district court, holding the FLSA’s retaliation provision is not meant to protect prospective employees from retaliation.  According to the court, the main goal of the FLSA is to ensure employees receive minimum wage and overtime.  Its anti-retaliation provision is meant to protect employees who report a violation of the law.  Generally speaking, the statute was formed to protect the employee-employer relationship.  The statute does not contemplate protecting a person who was not yet hired. 

The court cautioned that extending anti-retaliation protections to prospective employees would greatly expand the scope of the statute.  Ruling for Dellinger would mean all employees who have filed a lawsuit under the FLSA would have a claim for retaliation against their prospective employers who failed to hire them. 

It is interesting to note that the Department of Labor (“DOL”) filed an amicus brief in this case supporting Dellinger.  The DOL took the stance that the anti-retaliation provision should extend to prospective employees.  This provides insight as to how the DOL would handle such an issue. 

So what should an employer do?  We caution employers that failing to hire applicants because they previously sued an employer is not necessarily good business practice.  Each candidate should be assessed individually.  And even if you believe the prior suit warrants withdrawal of an offer, be careful.  Publicizing your rationale should be avoided.  This issue is not finally resolved.  Other courts may disagree and you do not want to be the test case where a court takes this stand. 

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.