Wednesday Federal Employment Law Update- FLSA Retaliation

Hello all, and welcome back for your Wednesday Federal Employment Law Update!  Regular followers know that I rarely discuss the same statute on consecutive weeks, but today’s case is important in the context of another FLSA case we discussed a few months back on this blog.  Earlier, in Kasten v. Saint-Gobain Performance Plastics Corp., 131 Sup. Ct. 1325 (2011), the U.S. Supreme Court held that retaliation claims under the Fair Labor Standards Act could be triggered by oral complaints in addition to written ones.  This was a significant opinion in that now, an employee on a production line who makes a comment about overtime policies may suddenly have a retaliation claim if he or she is demoted or terminated shortly thereafter, whereas previously retaliation claims required a written complaint.

In Dellinger v. Science Applications Int’l Corp., 2011 WL 3528750 (4th Cir. Aug. 12, 2011), the Fourth Circuit Court of Appeals faced another potential expansion on FLSA retaliation — withdrawal of an employment offer to a prospective candidate after learning that she sued her previous employer under the FLSA.  In Dellinger, Plaintiff was offered a job and asked to fill out some additional paperwork which asked, among other things, if she currently was involved in any non-criminal litigation.  After she advised that she was involved in an FLSA lawsuit against her previous employer, the offer was withdrawn.  She sued under the FLSA’s anti-retaliation provision.

Affirming the lower court’s dismissal, the Fourth Circuit held that under the express terms of the FLSA, only a current or former employee could state a cause of action against the employer, not a mere “prospective” employee. 

Funny, even as primarily a defense attorney, I find this Plaintiff’s case more compelling than the Kasten Plaintiff.  In this case, a person was clearly retaliated against because she previously stood up for her rights under the FLSA.  Why should it matter that she invoked the FLSA against a different employer?   I will be interested to see if this one makes it to the Supreme Court.


DISCLAIMER:  This blog is provided for entertainment purposes only and does not create an attorney-client relationship, nor does it represent legal advice. 

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