Rejecting prospective hire because he sued prior employer ok?

Provided by:  Jennifer Kirschenbaum, Esq.

June 13, 2017

Question

 
Hi Jennifer,
 
We just interviewed a great candidate to fill an open position in our practice. The interview went great, and she seems like a real fit, so we offered her the position. Afterwards, I did a quick background check and found out that she sued her previous employer. I’m concerned that she may have a history of suing her employers and I’m not interested in getting involved in any ligation. Can I renege on my offer based on what I now know?
 
Thank you in advance.
 
Dr. G.
 
Answer
 
This is a really good topic, because the law in this area is dicey, and still evolving.  I've asked K&K attorney Issac Cwibeker to take a look and he provides the following: 

As an initial matter, you should always tread carefully with respect to employees and even potential employees. The possibility of exposure or potential lawsuits should regularly be in the back of your mind.
 
To answer this question, a quick review of the pertinent employment laws is in order.  There are two very common issues that arise in employment disputes: 1) discrimination, and 2) overtime and minimum wage disputes.  Each of these issues is governed my two different laws passed by Congress.  With regards to job discrimination, Title VII of the Civil Rights Act of 1964 prohibits you from discriminating in hiring, firing or pay based on a person's race, religion, sex or national origin.  It also prohibits sexual harassment.  Further guidance on these issues is available at www.eeoc.gov.  Concerning overtime and minimum wage, the Fair Labor Standards Act (FLSA) is the nation's main wage law.  It sets the federal minimum wage  (many states have higher minimums) and requires time-and-a-half overtime pay for hourly employees who work more than 40 hours in a workweek. The FLSA also limits the hours and type of duties that teens can work. Further guidance on these issues is available at www.dol.gov/dol/topic/wages.
 
Now, this is where it gets interesting.  Under Title VII, if you interview a job applicant and find out she sued someone under Title VII for job discrimination you have to be careful because applicants can absolutely sue you for retaliation.  In other words, Title VII has an anti-retaliation provision, and what’s more striking is that job-applicants are considered “employees” under Title VII and can, therefore, utilize its protective measures.
 
With regards to FLSA, the law isn’t so clear.  To put it another way, the question is whether a mere job applicant for a position is entitled to the protection of the anti-retaliation provision of the Fair Labor Standards Act (FLSA).  FLSA provides protection for employees; job-applicants are not considered “employees” who enjoy the full might of FLSA.  To date, there is a dearth of reported court decisions on this matter, and the lack of case law may be explained by the fact that the FLSA is so clearly aimed at the employer-employee working relationship that it has never been thought to reach would-be employees.
 
That was the true until the Fourth Circuit clarified this issue in Dellinger v. Sci. Applications Int'l Corp., 649 F.3d 226 (4th Cir. 2011).  In Dellinger, the court refused to extend the reach of the FLSA's anti-retaliation provision beyond the employer/employee relationship to encompass a mere job applicant -- a would-be employee -- of an employer.  The court reasoned that Congress has not expanded the reach of the FLSA's anti-retaliation provision, despite the fact that statutes like Title VII are clear on the point at issue in this case.  To date, the New York courts have yet to consider this issue, but other circuits across the country that have commented on Dellinger all agree – an applicant can’t sue a prospective employer for passing on her because she previously sued someone else under the FLSA.
 
So, to answer your question, it would depend on what your job applicant previously sued for.  If she sued her former employer under Title VII, then you cannot reject her simply because of that filing.  However, if you interview a job applicant and find out she sued someone under the FLSA, you can reject her because applicants have no standing to sue for retaliation under FLSA.
 
That said, if you do choose to renege on an applicant that previously sued under FLSA, you should not breathe a word about the lawsuit in your reason.
 
Of course, the best way to determine which law your job applicant previously sued her former employer, would be to contact an attorney.  At Kirschenbaum and Kirschenbaum, PC we’re more than happy to guide you through that process.
 
For additional information on this topic contact Jennifer or   Issac Cwibeker directly.