You think you have found the perfect applicant. She has the experience and education you’re looking for. You make an offer contingent on the usual. Then you find out she has a lawsuit pending against her former employer for Fair Labor Standards Act ( ) claims. Can you revoke the offer?
According to the 4th Circuit Court of Appeals, which covers North Carolina employers, you can.
Simply put, the court said it’s not retaliation for a prospective employer to refuse to hire someone who sued another employer for wage-and-hour violations under the FLSA.
Even so, tread carefully in this area, because the rules could change.
Recent case: Natalie Dellinger applied for a job with Science Applications International Corp. (SAIC). She received a job offer contingent on passing a drug test and transferring her existing security clearance.
Dellinger had to fill out several forms in order to transfer the clearance. One required her to identify any lawsuits that she was a party to. She noted that she had a lawsuit pending against her former employer, claiming she had not been paid properly under the FLSA.
SAIC revoked the job offer and Dellinger sued for retaliation under the FLSA.
She claimed that it was wrong to refuse to hire her just because she had sued her former employer. Her lawsuit argued that, in the case of retaliation allegations, applicants should be considered employees.
SAIC moved to have the case dismissed, arguing that the FLSA allows only employees to sue for retaliation—not applicants.
The 4th Circuit Court of Appeals agreed after carefully reading the FLSA’s definition of who is an employee. It concluded that the only people who can sue for retaliation are those who are current or former employees of the company that allegedly violated the FLSA in the first place. While the court said this might seem harsh, it pointed out that the law’s language trumped what they might feel is fair and equitable. (Dellinger v. Science Applications International, No. 10-1499, 4th Cir., 2011)
Final note: Remember that this case is specific to the FLSA. The court went to great lengths to identify other federal laws that do make it illegal to refuse to hire an applicant because he or she complained or filed a lawsuit alleging a former employer’s discrimination or other illegalities.
For example, the court said that under the National Labor Relations Act, “employee” is defined broadly enough to cover applicants. Thus, employers can’t refuse to hire someone who filed unfair labor practice charges against a former employer.
Caution: Think twice before turning down an applicant because of a previous FLSA lawsuit. The court’s opinion suggested that the U.S. Department of Labor (DOL) could clarify the employee-applicant distinction by writing regulations to redefine “employee.” Given its recent tendency to expand worker rights through additional regulations, don’t be surprised if the DOL moves to address this issue.
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