Anti-Retaliation Provision of U.S. Fair Labor Standards Act Applies Only to Current or Former Employers

A prospective employer does not violate the anti-retaliation provision of the U.S. Fair Labor Standards Act (“FLSA”) by refusing to hire a job applicant because she sued her former employer under the FLSA. The U.S. Court of Appeals for the Fourth Circuit reached this conclusion in Dellinger v. Science Applications International Corp., No. 10-1499 (4th Cir. Aug. 12, 2011). The court held that the FLSA gives an employee the right to sue only his or her current or former employer and that a prospective employee cannot sue a prospective employer for retaliation.

Plaintiff Nancy Dellinger applied for an employment position with Science Applications International Corporation (“SAIC”). SAIC allegedly offered Dellinger a job, contingent on her passing a drug test, completing specified forms, and verifying and transferring her security clearance. One of the forms required her to list all pending noncriminal litigation to which she was a party. Dellinger completed the application and identified a lawsuit that she filed under the FLSA against her former employer, CACI, Inc. Subsequently, SAIC withdrew its job offer.

Dellinger sued SAIC, alleging that its withdrawal of the offer of employment constituted “retaliation and unlawful discrimination based on [her] exercise of her protected right to file an FLSA lawsuit,” in violation of 29 U.S.C. § 215(a)(3). SAIC moved to dismiss the action for failure to state a claim upon which relief may be granted. The U.S. District Court for the Eastern District of Virginia granted the motion. Dellinger appealed to the Fourth Circuit.

The Fourth Circuit affirmed the dismissal of Dellinger’s claim. The court observed that the FLSA establishes a minimum wage and a maximum number of hours beyond which an employer may not require its non-exempt employees to work without paying overtime wages. Among other things, the FLSA also prohibits retaliation against an employee for bringing an FLSA claim. In relevant part, 29 U.S.C. § 215(a)(3) provides that–

it shall be unlawful for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding….

The civil remedy provision of the FLSA, 29 U.S.C. § 216(b), provides in part that–

Any employer who violates the provisions of section 215(a)(3) … shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) … including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.

Dellinger argued that because Section 215(a)(3) provides  that “it shall be unlawful for any person” to retaliate against any employee, she could sue any “person” who retaliated against her, rather than simply her employer. The Fourth Circuit disagreed. It reasoned that–

While § 215(a)(3) does prohibit all “persons” from engaging in certain acts, including retaliation against employees, it does not authorize employees to sue “any person.” An employee may only sue employers for retaliation, as explicitly provided in § 216(b).

The court also found that the purpose of the anti-retaliation provision of the FLSA is “to ensure that employees could sue to obtain minimum wages and maximum hours from their employers without the employers taking adverse action against them for the exercise of those rights.” Because the provision is directed against employers, and is not “a free-standing protection against any societal retaliation, “29 U.S.C. § 215(a)(3), does not authorize prospective employees to bring retaliation claims against prospective employers.”

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