Fourth Circuit Affirms that Job Applicant Cannot Claim FLSA Retaliation
A majority of a three-judge panel of the Fourth Circuit held that Natalie Dellinger could not sue Science Applications International Corporation (SAIC) for refusing to hire her in retaliation for a suit she brought against her prior employer under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., because Dellinger was not an SAIC employee. The majority acknowledged that the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), makes it unlawful for “any person” to retaliate against any employee, but held that the FLSA’s enforcement provision, 29 U.S.C. § 216(b), only authorizes employees to sue their current or former employers for retaliation, and that an applicant is not an “employee.” Circuit Judge Robert King dissented, accusing the majority of ignoring binding Supreme Court and Fourth Circuit precedent and opining that Dellinger was an employee within the FLSA’s definition.
Withdrawal of Job Offer
In or around July 2009, Dellinger applied for a job with SAIC. In late August 2009, SAIC offered Dellinger the job, contingent on her completing certain paperwork and verifying and transferring her security clearance. According to Dellinger, she was asked to list any pending noncriminal actions to which she was a party on a security clearance form. In response, Dellinger disclosed that she had sued her previous employer in July 2009 for violating the FLSA’s minimum wage and overtime requirements. Dellinger claimed that, several days after she submitted her security clearance form, SAIC withdrew its job offer.
District Court Finds the FLSA does not Protect Prospective Employees
In 2010, Dellinger sued SAIC in the Eastern District of Virginia alleging that SAIC retaliated and unlawfully discriminated against her in violation of § 215(a)(3) by withdrawing its job offer because she exercised her protected right to file an FLSA lawsuit. The district court granted SAIC’s motion to dismiss for failure to state a claim, holding that Dellinger was not an SAIC “employee” and that § 215(a)(3) protects only employees from retaliation, not prospective employees like Dellinger. Dellinger v. Science Applications International Corporation, No. 10-CV-0025, 2010 BL 73745 (E.D. Va. Apr. 2, 2010). Dellinger appealed. The Secretary of Labor and the Equal Employment Opportunity Commission (EEOC) filed a joint amicus brief in support of Dellinger’s appeal.
FLSA does not Authorize Suits by Job Applicants
As the majority stated, the FLSA governs the relationship between employers and employees to improve labor conditions. See 29 U.S.C. § 202. Accordingly, the FLSA mandates that employers pay their employees a minimum wage, 29 U.S.C. § 206(a), and overtime compensation for a workweek exceeding 40 hours. See 29 U.S.C. § 207(a). The majority opined that the FLSA protects such substantive rights by banning retaliation, specifically by making it “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,” among other things. 29 U.S.C. § 215(a)(3).
The majority emphasized that § 216(b) provides that “[a]ny employer who violates” minimum wage or overtime requirements or the ban on retaliation “shall be liable” and authorizes “any one or more employees” to maintain an action against “any employer” in federal or state court to recover liability for minimum wage or overtime violations or retaliation. The majority then concluded that the FLSA bans retaliation “against any employee,” which the FLSA defines as “any individual employed by an employer,” 29 U.S.C. § 203(e)(1), and thus protects only employees against retaliation. The majority found that, since the FLSA provides an employee with remedies for § 215(a)(3) violations only from an employer, Dellinger could sue SAIC only if she could show that she was an SAIC employee, which she could not. Although SAIC approved her job application on a contingent basis, the majority determined that she never started work, noting that the FLSA defines “employ” as “to suffer or permit to work.” 29 U.S.C. § 203(g).
The majority rejected Dellinger’s argument that she could sue “any person” for retaliation because § 215(a)(3) prohibits “any person” from retaliating. The majority explained that § 215(a) prohibits “any person” from retaliating because of its structure: it bars “any person” from engaging in a number of actions, including retaliation, some of which are not acts that employers take, such as transporting goods produced by an employee paid in violation of the FLSA. The majority reasoned, however, that the FLSA provides no remedy for an employee to sue a shipper of such goods, and that, similarly, § 216(b) does not authorize an employee to sue anyone except his or her employer for retaliation.
The majority stated that it had found no case extending FLSA protections to applicants or prospective employees, only cases limiting § 215(a)(3) to employer-employee relationships. See, e.g., Glover v. City of North Charleston, S.C., 942 F. Supp. 243, 245 (D.S.C. 1996); Harper v. San Luis Valley Reg’l Med. Ctr., 848 F. Supp. 911 (D. Colo. 1994).
The majority agreed with Dellinger that permitting prospective employers to discriminate against job applicants based on the prior exercise of FLSA rights “could be problematic” but concluded that it could not expand the FLSA’s scope beyond its plain terms and its explicit objective of setting minimum wages and maximum hours between employees and employers. The majority also rejected Dellinger’s urging that it expand the FLSA’s definition of employee to protect applicants in a manner similar to other statutes. For example, the National Labor Relations Act protects prospective employees from retaliation, but it defines “employee” more broadly by stating that the term “shall not be limited to the employees of a particular employer” unless expressly stated. See 29 U.S.C. § 152(3). The majority also noted that, while regulations implementing the Occupational Safety and Health Act (OSHA), 29 C.F.R. § 1977.5(b), and the Pipeline Safety Improvement Act, 29 C.F.R. § 1981.101, extended protections to prospective employees, the Secretary of Labor had not promulgated an analogous regulation under the FLSA.
Dissenting, Judge King criticized the majority for declining to extend Robinson v. Shell Oil Co., 519 U.S. 337 (1997), in which the Supreme Court held that former employees could sue for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., although Title VII “on its face, provide[d] redress solely to ‘employees.’” The dissent also faulted the majority for disregarding Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008), in which the Fourth Circuit held that the FLSA, like Title VII, protects former employees from retaliation, and McLaughlin v. Ensley, 877 F.2d 1207 (4th Cir. 1989), in which the Fourth Circuit concluded that an unpaid trainee qualified as an “employee” entitled to minimum wage under the FLSA.
The dissent opined that Dellinger stated a claim under Robinson, and that the majority should not have given “its thumbs-up to [SAIC’s] conduct and pav[ed] the way for other employers to adopt similar practices.” The dissent found that the majority’s ruling “bucks the trend begun by Robinson, which is indisputably toward an expansive interpretation of protective statutes like Title VII and the FLSA to thwart employer retaliation.” See, e.g., Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008), both discussed in Bloomberg Law Reports, Labor & Employment, Vol. 2, No. 22 (June 2, 2008). The dissent further noted that the Supreme Court recently acknowledged that anti-retaliation provisions play a crucial role in regulating employers’ unfavorable conduct. See, e.g., Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 129 S. Ct. 846, 852 (2009), discussed in Bloomberg Law Reports, Labor & Employment, Vol. 3, No. 5 (Feb. 2, 2009).
The Dissent did not mention another recent Supreme Court decision that provides further evidence of a trend toward more permissive consideration of FLSA retaliation claims — Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011), discussed in Bloomberg Law Reports, Labor & Employment, Vol. 5, No. 13 (Mar. 28, 2011). In Kasten, the Supreme Court held that under § 215(a)(3), the FLSA’s anti-retaliation provision, oral as well as written complaints constitute protected activity.
Dellinger has filed papers indicating her intent to seek a petition for rehearing en banc, thus making it likely that the Fourth Circuit will have more to say regarding this important case.
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