The Fourth Circuit Court of Appeals recently dismissed a Fair Labor Standards Act retaliation claim where the plaintiff alleged that the defendant refused to hire her because she had sued her previous employer for wage and hour violations. In Dellinger v. SAIC, the Fourth Circuit reasoned that because the Fair Labor Standards Act (FLSA) only permits “employees” to sue their “employers” for retaliation, an employer cannot retaliate against someone they never actually hired as an employee. The result would likely have been different had the case been brought under Title VII rather than under the FLSA- unlike the FLSA, Title VII specifically prohibits discrimination and retaliation against applicants for employment.
Based on that analysis, an employer may believe that just as it is not unlawful under the FLSA to retaliate against a job applicant, it would not be unlawful to retaliate against an individual it no longer employs. That, however, is not the rule. Instead, employers can be held liable for retaliating against their former employees. Both the majority and dissenting opinions in Dellinger recognized this result as have other courts, applying a variety of statutes including the FLSA and Title VII.
Unlawful retaliation against former employees may include providing a negative reference to prospective employers, contesting the former employee’s application for unemployment insurance benefits, suing or even threatening to sue or commencing other legal proceedings against the former employee for frivolous reasons or any other action that is reasonably likely to deter the individual from engaging in protected activity when done in response to that employee’s exercise of his or her FLSA or other statutory rights.
Before we go, we note that the result in Dellinger would have been different had the plaintiff claimed retaliation for exercising her rights under Title VII rather than FLSA, because Title VII specifically prohibits employers from retaliating against job applicants.