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Applicant cannot bring retaliation claim under FLSA, 4th Circuit rules

August 16th, 2011  |  Sheryl Allenson

In a decision that may be ripe for Supreme Court review, the Fourth Circuit ruled that an applicant was not an employee for purposes of bringing suit under the FLSA anti-retaliation provision, and therefore, prospective employees cannot sue a prospective employer for retaliation (Dellinger v Science Applications Int’l Corp, August 12, 2011, Niemeyer, P). However, in an extensive dissent, Judge King reasoned that that majority ignored Supreme Court precedent when it ruled that the FLSA gives an employee the right only to sue his current or former employer.

Initially, the employee filed an FLSA suit against her former employer. The employee applied for a job with Science Applications, and was offered a job, contingent on passing a drug test, completing specified forms, and verifying and transferring her security clearance. In doing so, the employee was required to disclose non-criminal suits, and therefore disclosed her FLSA suit against her former employer. Thereafter, Science Applications withdrew its job offer.

The plaintiff filed suit against Science Applications, alleging the company  retaliated against her, in violation of the FLSA’s anti-retaliation provision, Sec. 215(a)(3), by refusing to hire her after learning that she had sued her former employer under the Act. The district court granted Science Applications’ motion to dismiss, concluding that the plaintiff was not an “employee” of Science Applications, as defined in the FLSA, and that the Act’s anti-retaliation provision does not cover prospective employees.

First, the appeals court reasoned that because an employee is given remedies for violations of Sec. 215(a)(3) only from an employer, the plaintiff could only sue Science Applications if she could show that she was an employee and that Science Applications was her employer. However, the appeals court concluded that she failed to do so, because she was simply an applicant, and under Sec. 203(g), the term “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’” the appeals court wrote.

Next, the appeals court rejected the plaintiff’s argument that she could sue any “person” for retaliation, based upon the language of Sec. 215(a), which defines “prohibited acts,” as stating that “it shall be unlawful for any person” to retaliate against any employee. While the appeals court acknowledged that “Sec. 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 Sec. 216(b), the appeals court wrote.

Although the appeals court acknowledged the plaintiff’s arguments in favor of extending the definition of an employee to that of a job applicant, it reasoned that the history of the FLSA did not support such a conclusion. While the meanings behind other statutes could advance such a finding, the text and purpose of the FLSA did not, the appeals court concluded. Reasoning that the Act closely links the employment relationship, and because the Act allows for a civil remedy only by employees against their employers, the appeals court concluded that the FLSA’s anti-retaliation provision did not authorize prospective employees to bring retaliation claims against prospective employers.

Dissent. Stating that he could “escape the conclusion that” the Supreme Court decision of Robinson v Shell Oil Co mandated the opposite result from that reached by the majority, Judge King dissented from that opinion. While the Robinson opinion arose out of a Title VII action, Judge King noted “its analytical framework readily admits of a more widely reaching application, and it should therefore powerfully inform our analysis of Dellinger’s appeal today.”

Although the majority promoted a restrictive reading of eligibility for bringing a retaliation claim under the FLSA, the Robinson court counseled against such a negative inference, Judge King noted. Rejecting the majority’s position, the dissent stated that the plaintiff’s construction of the term “employee” was “ compelled by Robinson. At the very least, her construction seems eminently reasonable,” he wrote.  Based on his analysis, the dissent concluded that the plaintiff was an employee within the meaning of the FLSA, and therefore, pled a sufficient claim under the Act.

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