By Donna Ballman
An ugly new trend is spreading in the workplace, and the courts say it's okay. If you're trying to get a job, employers can now discriminate against you in ways that current employers can't.
A Potential Employer Can Retaliate Against You For Suing Your Employer
The latest attack on potential employees comes out of the 4th Circuit, covering Maryland, Virginia, West Virginia and North Carolina. In the case of Dellinger v. Science Applications, the court ruled that a job applicant is not protected from retaliation under the Fair Labor Standards Act. The implications are frightening. Say you work for Scumbag Employer, Inc., which suddenly stops paying employees. You sue. You have the right to do so. You win. Scumbag Employer has to pay up. You're a hero, because your coworkers get paid too. If Scumbag Employer fires you for suing them, that's illegal. But once you decide to leave, beware.
In Dellinger, the court found that prospective employees aren't protected against retaliation by prospective employers. The plaintiff had gone through all the pre-hiring procedures and had only to pass a background check. Once her suit against her former employer came up, the offer was withdrawn speedy quick. You can hear the HR people yelling, "Hot potato!" can't you?
If the employer you applied with does a background check that includes lawsuits and your name pops up as a plaintiff against your former employer, the potential employer can turn you down. They can even tell you they aren't hiring you because you sued your former employer. "Sorry, but we don't want employees who expect to be paid the minimum wage," is now an acceptable reason to reject applicants in these four sad states after this court decision.
The court reasoned that the language in the statute says "any employee" is protected, so potential employees are out of luck. Fortunately, there's already case law saying that employers can't retaliate against their former employees, which means the former employer can't tell the potential employer not to hire you because you're a troublemaker. Still, if they do, your only claim is against the former employer. You can do nothing against the potential employer.
The Fair Labor Standards Act says that employers have to pay you overtime for hours worked over 40; that you have to be paid at least minimum wage; and that you have to be paid for your work. Because many employers are cutting corners by improperly designating employees as salaried and working them like slaves, refusing to pay overtime, using unpaid "interns" or even stealing employee wages by refusing to pay for their work, FLSA suits are being filed in droves. Once suit is filed, you could be joined into a class action filed by a coworker and get your money without needing to be the one who filed. There used to be zero downside to participating in one of these suits, because your job was protected.
Now, who the heck would participate in a suit knowing that being a plaintiff could keep them from getting a new job for the rest of their lives? This is a situation that needs to be addressed immediately. The Department of Labor could issue a regulation saying the statute applies to potential employees. That might help, because the court specifically mentioned the lack of such a regulation as part of their reasoning. For a permanent fix, Congress needs to amend the law to add potential employees to the retaliation provisions.
It's almost certain that another circuit court will eventually disagree and the issue will end up at the Supreme Court. That will take years. In the meantime, the only hope employees in these states have is that their state whistleblower laws may protect potential employees from retaliation for having objected to wage and hour violations. If they don't, the states should take prompt action to protect their citizens from this type of abuse. Job seekers are voters too!
A Potential Employer Can Discriminate Against You For Filing Bankruptcy
There's another law that the courts say doesn't protect job seekers. Although the Bankruptcy Code says: "No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt . . . ," a case decided in March out of the 5th Circuit Court of Appeals found that this provision did not apply to discrimination in hiring. The employer withdrew a job offer after the background check revealed that she had filed for bankruptcy.
Why? "Had Congress wished to bar private employers from discriminating against debtors in their hiring decisions, it could have done so by adding the phrase 'deny employment' to [the law] when it amended [the law] in 1994 and again in 2005." The problem is that Congress did put in language about bankruptcy discrimination in hiring in the statute that addressed government employers. The 5th Circuit, along with the 3rd Circuit figured this meant something other than that the two laws were drafted at different times by different people.
Similar cases are starting to pop up in other circuits, starting with my own 11th Circuit, which will decide soon if they will agree (I predict they will, but I hope I'm wrong). The Supremes don't get the case until a circuit disagrees and a conflict exists. Don't hold your breath that th
Congress can fix this loophole easily. Will it? So far, no. I guess bankrupt constituents don't vote.is happens anytime soon.
Most Laws Still Protect Applicants
It's not all bad news. Potential employees are protected from retaliation for suing or bringing claims against employers under most employment laws, including the discrimination laws (ADA, Title VII, ADEA), the National Labor Relations Act, USERRA, OSHA, and most whistleblower laws.
If you're thinking about filing a suit or a claim against your employer, you should ask whether the law protects you from retaliation, not only from your employer, but if you go job hunting. If the answer is no, think carefully before you decide to sue.
Donna Ballman is the award-winning author of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She's been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues is Screw You Guys, I'm Going Home. To find out more about Donna, visit her on Red Room.
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