Can a prospective employer be held liable under the retaliation provision of the FLSA? Not according to the Fourth Circuit and its decision in Dellinger v. Science Applications International Corp..
The case arose when Ms. Dellinger applied for work with Science Applications. Science Applications made Ms. Dellinger a job offer, contingent upon her providing certain information-including a list of pending civil litigation in which she was a party. Shortly after revealing that she was involved in FLSA litigation against her former employer, Science Applications withdrew the job offer to Ms. Dellinger. Ms. Dellinger then filed suit against Science Applications, alleging that it violated the retaliation provisions of the FLSA. Science Applications moved to dismiss the suit on the grounds that the FLSA protects employees only, not prospective employees. The District Court dismissed the suit, and Ms. Dellinger appealed.
The Fourth Circuit affirmed the District Court decision. In its opinion, the Court emphasized that the FLSA’s anti-retaliation provision relates to circumstances in which an employee alleges a violation by the employer. Given that context, the Court found that the retaliation provision cannot be expanded to cover prospective employees who have made no allegation against the prospective employer.
The Court also distinguished the FLSA from other statutes, including the National Labor Relations Act and the Occupational Safety and Health Act, noting the definition of “employee” under those statutes and enabling regulations is broader than the definition under the FLSA.