Fourth Circuit Rejects FLSA Retaliation Claim for Job Applicant

The Fourth Circuit recently issued a troubling 2-1 decision in Dellinger v. Science Applications International Corp. The majority (Judges Niemeyer and Keenan) held that under the anti-retaliation provision for the Fair Labor Standards Act (FLSA, the federal wage and hour law), a job applicant cannot sue an employer that refused to hire her solely because she had sued her former employer for wage and hour violations. Although this conclusion seems contrary to the spirit of FLSA's protections, the majority reasoned that FLSA only allows suits by an individual against their employer, not prospective employer. The dissent by Judge King is much more persuasive, arguing that FLSA can be read to cover this situation and that such a reading is in keeping with the recognized need to eliminate retaliation against those who assert their rights under FLSA, Title VII, or other employment laws.