The Fair Labor Standards Act (FLSA), which was intended by Congress to govern the employment relationship, does not cover job applicants. At least, that was the conclusion the Fourth Circuit recently reached in a case of first impression at the federal appellate level.
Here’s the law: An employer who retaliates against an employee for filing a complaint or testifying about violation of the FLSA may be sued by the aggrieved employee for legal and equitable relief, including reinstatement, promotion, and lost wages, together with an equal amount as liquidated damages. 29 USC §§215(a)(3), 216(b).
That’s some pretty strong anti-retaliation protection. But the key, according to the majority in Dellinger v Science Applications Int’l Corp. (4th Cir, Aug. 12, 2011, No. 10-1499), is the word “employee;” the protection does not extend to applicants for jobs who are retaliated against by their prospective employer.
In Dellinger, the plaintiff applied for a job and got an offer pending a drug test and the completion of security clearance forms. In response to a question on one of the forms, she disclosed information about a suit she had filed against a past employer for violation of the FLSA’s minimum wage and overtime laws. That rang the death knell for her application and the offer was withdrawn. Obviously familiar with suing under the FLSA, she sued her prospective employer for “retaliation and unlawful discrimination” based on her exercise of her protected right to file suit under the FLSA.
The majority stuck to the literal language of the FLSA — it protects “employees,” i.e., “those in an employment relationship with their employer.” It’s not that they weren’t “sympathetic” to the plaintiff’s argument. In fact, the majority found that allowing future employers to discriminate against prospective employees for having exercised their FLSA rights in the past “could be problematic.” But it stuck to its finding that allowing her suit would “broaden the scope of the FLSA beyond its explicit purpose of fixing minimum wages and maximum hours between employees and employers.”
A strong dissent accused the majority of “giving its thumbs-up to the company’s conduct and paving the way for other employers to adopt similar practices.”
The National Law Journal reports that the U.S. Department of Labor and the EEOC are reviewing the decision. Given that, and that this is the first such case to reach a federal appeals court, this is unlikely to be the last we hear of this issue.
On civil actions to enforce wage and hour laws, including the issue of retaliation, turn to CEB’s award-winning book California Wage and Hour: Law and Litigation, chap 4.
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