Job Applicant Cannot Sue For Retaliation Under FLSA

In Dellinger v. Science Applications Int’l Corp., 2010 U.S. Dist. LEXIS (E.D. Va. Apr. 2, 2010), Judge Cacheris, applying the text of the FLSA’s anti-retaliation language (29 U.S.C. § 215(a)(3)), held that those protections are limited to employees, and not a job applicant.  Thus, in Dellinger, the plaintiff who allegedly was refused employment by defendant after defendant became aware that plaintiff had filed an FLSA action against another employer.  As plaintiff had never been an “employee” of defendant, the prohibition of the FLSA, which states that “it shall be unlawful for any person . . . (3) 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 . . .,” did not apply.  Judge Cacheris, relies upon the textual analysis and two other district court decisions that have arrived at similar results.  See Harper v. San Luis Valley Reg’l Medical Ctr., 848 F. Supp. 911 (D. Colo. 1994); Glover v. City of North Charleston, 42 F. Supp. 243 (D.S.C. 1996).  Plaintiff has lodged an appeal to the Fourth Circuit.

Thanks to the Overtime Law Blog for calling this case to our attention.

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