The Fourth Circuit just ruled against a claim by an applicant for a job who was rejected because she previously sued a former employer. The Court held that the Fair Labor Standards Act protects current and former employees only, and therefore she had no viable claim of retaliation.
In this case, the plaintiff was offered a job, contingent on passing a drug test and transferring her security clearance. In the security clearance form, she had to list pending cases, which is how the new employer found out about the lawsuit. It withdrew the offer. Because she never started work with the new company, its retaliation was not illegal under the law, according to the decision.
The dissent argued that the definition of the word “employee” was not so free from doubt, and could be stretched to cover the plaintiff, particularly in light of the law’s intent to protect workers. In fact, the law imposes criminal penalties for acts of retaliation. In addition, there is precedent that unpaid trainees qualified as employees.
Employees who experience discrimination and retaliation have many issues to consider before suing their employers. Unfortunately, one of them is whether a new employer will hold that lawsuit against them.