The Fair Labor Standards Act (FLSA) makes it very clear that an employer is not allowed to retaliate against an employee for reporting FLSA violations. However, according to the Fourth Circuit Court of Appeals, employers are allowed to refuse to hire someone who “blew the whistle” on a former employer.
The Fourth Circuit Court of Appeals ruled in Dellinger v. Science Applications International Corp, that an employer cannot be sued for retaliation when they refuse to hire a prospective employee who filed an FLSA lawsuit against a former employer. The court based this ruling on the determination that retaliation does not occur when an employment relationship between the parties never existed.
While this ruling is not binding in Massachusetts, it does create a persuasive argument that employers in Massachusetts could make to combat similar claims. Where no employment relationship has previously existed, it is very hard to make any sort of claim of retaliation against that employer.
Whistleblowing employees should be aware that while they will be protected against retaliation from the employer against whom the complaint was filed, that protection my not follow the employee to other companies. This may severely hurt employees’ chances of being hired elsewhere, especially if the claims that were filed against the employee’s previous employer were without merit.
It should be noted that while employers who refuse to hire former whistleblowers may be protected from an FLSA claim, the same may not be true for a claim under Title VII, which prohibits retaliation against applicants for employment, as well as current employees.
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