Last week the United States Court of Appeals for the Fourth Circuit scheduled argument in one of my cases.  Although it does not directly pertain to qui tam litigation, it does concern the scope of the anti-retaliation provisions of the Fair Labor Standards Act. 

This is also the first time that any appellate court has heard this particular issue, so I think it might be of some interest.

The case is captioned Dellinger v. SAIC, and the question before the Fourth Circuit is whether the anti-retaliation provisions of the FLSA protect an applicant for employment.  Stated a slightly different way, the question is whether a prospective employer can lawfully discriminate against an applicant for employment after learning that the applicant filed an FLSA lawsuit against a past employer. 

The plaintiff in this case was qualified for the job with SAIC; moreover, she had received a written offer of employment, had passed the drug test, and had otherwise met every requirement SAIC made of her.  Because the job required a security clearance, before she could officially begin employment, she was required to inform SAIC if she had been a party to any sort of litigation. 

She truthfully answered that she had filed an FLSA lawsuit against a previous employer, and that is where things fell apart.  Suddenly, she went from someone who had a written offer of employment and a date to start work to someone without a job.  To read the Complaint filed in the U.S. District Court for the Eastern District of Virginia, click here. 

The District Court dismissed the case for failure to state a claim, and we took this appeal to the Fourth Circuit.  To read the opening brief click here. 

The anti-retaliation provisions of the FLSA provide as follows: It shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding.

This case therefore addresses the question of whether an applicant for employment is an "employee" as defined by the statute.  In the past, Courts have interpreted the term "employee" broadly to include former employees as within the protections of the FLSA anti-retaliation provisions, but again, there is very little case law concerning whether an applicant for employment falls within that scope.  In fact, prior to this case, there were only two District Court opinions on this subject.   

The U.S. Department of Labor filed an excellent amicus brief in the case, and has asked to participate in the oral argument.