Human Resources News & Insights

Who won this case? Applicant claims retaliation for suing former employer

An applicant claims a prospective employer rescinded a job offer after the company learned he’d filed an OT suit against a former employer. He sued for retaliation under the Fair Labor Standards Act. Did he win?

Read the dramatized version of this real-life case and see if you can determine the outcome.

The scene

HR manager Leslie Bernstein was packing up for the day when her phone rang. It was VP Carl Ensler.

“Good, Les, you’re still there,” said Carl. “Bad news: A job applicant is suing us for retaliation.”

Leslie pulled the phone away from her head for a second and scratched her ear. “I think you broke up there, Carl. Did you say a candidate is suing us for retaliation? How is that even possible?”

“I don’t know,” said Carl. “but this guy’s name is Steve Flanigan. Ring a bell?”

“Yeah,” said Leslie. “We made a job offer to him with the understanding he had to get security clearance before starting.

“Our form asks if the applicant’s been involved in any pending noncriminal court actions,” Leslie continued. “Steve told us he’s suing his former company for some apparent overtime violations. That wasn’t exactly something we were overjoyed about, but it wasn’t a deal-breaker.

“In the end, it didn’t matter. Another candidate ended up being a better fit, and we withdrew our employment offer to Steve,” said Leslie. “That’s the last I heard of him – until now.”

“Well, he says we withdrew our offer because he’s suing his former firm,” said Carl. “Can he win with that?”

“We’re entitled to hire whoever we want,” said Leslie. “It turned out Steve wasn’t the best choice, so we didn’t go through with the offer.”

Did Leslie’s company win?


The decision

Yes, the company won. Steve argued the job offer was withdrawn once Leslie’s firm learned he was suing his former employer for a Fair Labor Standards Act (FLSA) violation.

He pointed out the FLSA states it’s “unlawful for any person to retaliate against any employee.” And in this case, Steve said, Leslie’s company was the “person” retaliating.

However, the judge said the FLSA pertains to wages paid and hours worked linked to a current or former employment relationship. Therefore, the FLSA’s anti-retaliation provision doesn’t cover prospective staff.

Since the employer/employee relationship was never initiated, the decision not to hire Steve couldn’t be the basis for a retaliation complaint, the judge said.

Analysis: Employers’ prerogative

Withdrawing a job offer is a delicate process. To avoid any surprises, it’s best to seek legal advice before notifying the prospective employee. After that you should:

• notify the candidate as soon as possible, stating the offer is being withdrawn and the effective date

  • allude to changes within the company that prevent you from going ahead with the offer at this time
  • wish the applicant success in a further job search, and
  • keep documentation of the notice on file in HR.

Cite: Dellinger v. Science Applications International Corp.

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