February 27, 2012
On February 21, 2012, the U.S. Supreme Court declined to review a Fourth Circuit Court of Appeals decision rejecting a job applicant's retaliation claim filed under the Fair Labor Standards Act ("FLSA") against her prospective employer. By declining to review the decision, the Supreme Court left undisturbed the Fourth Circuit's ruling that job applicants are not "employees" who are protected by the anti-retaliation provisions of the FLSA.
In Dellinger v. Science Applications International Corp., the plaintiff alleged that her prospective employer, Science Applications, retaliated against her by withdrawing its conditional job offer after discovering that she had filed an FLSA lawsuit against her former employer. In a 2-1 decision, the Fourth Circuit affirmed the U.S. District Court's dismissal of her retaliation complaint. The Fourth Circuit held that the FLSA anti-retaliation provisions applied only within the bounds of an actual current or former employment relationship, but did not authorize prospective employees to file retaliation claims against prospective employers in circumstances where an employment relationship never existed.
The plaintiff argued in her petition for Supreme Court review that the Fourth Circuit's decision conflicted with the Supreme Court's decision in Robinson v. Shell Oil Co., a 1997 decision addressing the scope of the anti-retaliation provisions of Title VII of the Civil Rights Act ("Title VII"). SAIC argued in its opposition to the plaintiff's petition that the Robinson case was factually distinguishable because the statutory language of Title VII expressly covers both employees and applicants and because the Robinson case involved a former employee of the defendant rather than a job applicant who had never been in an employment relationship with the defendant.
Although the Fourth Circuit's decision in the Dellinger case does not constitute binding precedent in the Federal Courts in New York, employers in New York can nevertheless rely on the Fourth Circuit's Dellinger decision as persuasive authority regarding the scope of the FLSA's anti-retaliation provisions.