AN APPLICANT CANNOT PURSUE A CLAIM OF RETALIATION UNDER THE FLSA

Much has been made recently about retaliation under the Fair Labor Standards Act based on the Supreme Court’s granting certoriari to determine whether an employee’s termination following an internal oral complaint was retaliatory.  While that issue is being decided another federal court – the Eastern District of Virginia – found that an applicant was not covered by the FLSA’s anti-retaliation provision.  Dellinger v. Science Applications International Corporation, 2010 U.S. Dist. LEXIS 32861 (E.D. Va. Apr. 2, 2010).   The applicant openly disclosed her pending FLSA claim against a former employer during the application process.  When she was not hired, she sued the potential employer claiming retaliation.  Defendant filed a 12(b)(6) motion to dismiss asserting that Plaintiff failed to plead that she was an “employee” within the FLSA’s definition.  The express definition of employee within the statute does not include applicants. 

Absent an amendment to the FLSA, this case and similar cases permit employers to refuse to hire individuals on the basis of their involvement in FLSA related litigation.  Employers with these types of concerns should use available resources, including social networking sites, to determine whether an applicant has previously been involved such claims.

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