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U.S. Supreme Court Leaves Intact Decision Refusing to Extend the Fair Labor Standards Act’s Anti-Retaliation Provision to Prospective Employees

JDSupra (02/22/2012) Michael S. Arnold

The U.S. Supreme Court has decided not to take up the issue of whether the Fair Labor Standards Act’s antiretaliation component is applicable to prospective workers, leaving intact a Fourth Circuit Court of Appeals decision barring FLSA antiretaliation claims by prospective employees. According to the Fourth Circuit, the antiretaliation component applies only to current and former employees. In the case the Fourth Circuit considered, Dellinger v. SAIC, the court concluded that because the FLSA only allows “employees” to sue their “employers” for retaliation, an employer cannot retaliate against an individual it never hired. Had the case been brought under Title VII of the Civil Rights Act of 1964, however, the results very well may have been different, because Title VII prohibits retaliation against job applicants.