Like most federal labor laws, the Fair Labor Standards Act prohibits employers from retaliating against employees who pursue claims for unpaid wages. Last Friday, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) concluded that the FLSA's anti-retaliation provisions do not apply to an applicant who claimed she was not hired due to a pending wage claim against her former employer.

In Dellinger v. Science Applications Int'l Corp., Inc., the defendant gave the plaintiff an offer of employment, conditional upon her successfully completing a security background check. On the security check form, she disclosed a pending FLSA claim against her former employer. Science Applications subsequently withdrew her employment offer, and she sued, alleging retaliation under the FLSA.

In a 2-1 decision, the Fourth Circuit affirmed dismissal of the claim. The majority relied on statutory language limiting the FLSA's retaliation ban to actions by "employers" against "employees." The court noted the legislative purpose of the FLSA is to provide employees with certain wage benefits, and not to prevent societal retaliation against applicants who have sued other employers.

The dissenting judge noted that in 1997, the U.S. Supreme Court used similar statutory language in its Robinson decision to conclude that Title VII prohibits retaliation against former employees. The Fourth Circuit majority opinion noted that neither Robinson nor any other decisions extend their protections to applicants, or to the FLSA in general.

The Department of Labor filed an amicus brief on behalf of the plaintiff. Unless this decision is overturned through appeal, DOL may attempt to promulgate regulations that would interpret the FLSA to extend its anti-retaliation provisions to applicants. Employers should be aware of these possibilities before rejecting applicants based on a history of wage claims against former employers.