Recently, the Fourth Circuit Court of Appeals was asked to address a specific yet important issue under the Fair Labor Standards Act (FLSA).  Specifically, the Court was asked to address whether an applicant – who had been given a conditional offer of employment – could bring a suit against his or her prospective employer under the FLSA’s retaliation provisions.  In a dose of good news for employers, the Court concluded that applicants or prospective employees could not bring a claim against employers under that statute.

In the case of Dellinger v. Science Applications International Corporation, the plaintiff filed a FLSA claim against a prior employer around the same time she submitted an application to Science Applications International Corporation.  Science Applications extended an offer to the plaintiff contingent upon passing a drug test, completing specified forms and verifying and transferring her security clearance.When the plaintiff accepted that offer and began her efforts to satisfy those contingencies, a security clearance form she had to complete required her to list any pending non-criminal litigation.  She appropriately listed her pending FLSA lawsuit against her former employer on the form.  Days after the plaintiff submitted the form, Science Applications withdrew its offer of employment, prompting the plaintiff to file yet another FLSA claim – this time against Science Applications alleging that its withdrawl of the employment offer was “retaliation and unlawful discrimination based on [the plaintiff’s] exercise of her protected right to file a FLSA lawsuit” in violation of 29 U.S.C. §215(a)(3).

Science Applications filed a motion to dismiss the complaint noting that the plaintiff was not and never was its employee. Section 215(a)(3) of the FLSA prohibits retaliation but defines it as discrimination against “any employee because such employee has filed a complaint or instituted or cause to be instituted any proceeding under or related to this chapter.”  In issuing its decision, the Fourth Circuit focused on this language, emphasizing the FLSA’s intent to regulate the employer/employee relationship and declining, in its own words, to broaden the scope of the FLSA and its plain language “even when morally unacceptable retaliatory conduct may be involved.”

Again, this decision represents a victory for the employer community; however, employers should refrain from immediately engaging in this rampant “morally unacceptable retaliatory conduct.”  Any action implemented in light of this decision should be done carefully given the narrow scope of the Fourth Circuit’s decision.  As always, consulting with your legal counsel about such hiring practices changes (and potentially “morally unacceptable retaliatory conduct”) is advisable.

Tom Kleeh concentrates his practice in labor and employment law. Mr. Kleeh has experience defending employers in protected class litigation and claims in discrimination claims against employers based upon age, race, sex, disability, religion and national origin as well as claims of sexual and other forms of unlawful harassment. He has defended claims for breach of contract, retaliatory discharge, defamation, invasion of privacy, and other employment-related torts.
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