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No ‘retaliation’ claim for job applicant

A woman who alleges a job offer was withdrawn after a prospective employer learned she sued her last employer for overtime pay cannot sue the hiring company under the Fair Labor Standard Act’s anti-retaliation provision, says the 4th U.S. Circuit Court of Appeals.

Natalie Dellinger thought she had a new job. She alleged Science Applications International Corporation offered her a position, contingent on her passing a drug test, completing certain forms, and verifying and transferring her security clearance. Dellinger accepted the offer and began taking steps to satisfy those contingencies.

However, shortly before applying with SAI, Dellinger had sued her previous employer, CACI Inc., under the FLSA’s minimum wage and overtime pay provisions. She alleged SAI learned about the suit when Dellinger listed it on her security clearance form as a pending noncriminal action to which she was a party. She claimed that after she submitted the form to SAI, it withdrew the job offer.

When she sued SAI under the federal labor statute’s anti-retaliation provisions, 29 U.S.C. § 215(a)(3), Senior U.S. District Judge James C. Cacheris dismissed the suit. He agreed with SAI that the statute’s protections do not extend to job applicants.

Two judges of the 4th Circuit’s three-judge panel agreed in Dellinger v. Science Applications Int’l Corp. Judge Paul V. Niemeyer said an applicant who never began or performed any work could not, by the language of the FLSA, be an “employee.” He said the panel had been unable to find any case that extends FLSA protections to applicants or prospective employees.

Judge Robert B. King dissented. He said SAI had “jettisoned plaintiff’s paperwork in retaliation for her having exercised her lawful rights” and the majority gave “its thumbs-up to the company’s conduct,” paving the way for other employers to adopt similar practices.

The Dellinger decision is the first time any circuit court has considered this issue, said Dellinger’s lawyer, Zachary Kitts, of Fairfax. Kitts said that although the defendant in this case learned about Dellinger’s earlier FLSA suit through her security clearance form, prospective employers nowadays don’t even have to ask, they can do an online name search to see if an applicant has been involved in litigation.

SAI’s lawyer, Robert B. Sparks Jr., of McLean, said there are few reported decisions because the issue of protection for a job applicant “seldom comes up.” The vast majority of FLSA cases involve current or former employees.

Kitts said he plans to petition for rehearing en banc.
By Deborah Elkins

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