The Fourth Circuit says no–a prospective employee may not sue a prospective employer for retaliation under the Fair Labor Standards Act. The Court of Appeals split 2-1. Judge Niemeyer (joined by Judge Keenan) wrote an opinion affirming the decision of Judge Cacheris (E.D. Va.) in Dellinger v. Science Applications International Corporation. Judge King dissented.
The opinion appears to break little new ground, although ruling against the Secretary of Labor and EEOC, who filed an amicus curiae brief in support of the prospective employee.
One of the more interesting features of the decision is the consonance in tone between Judge King’s dissent from Judge Niemeyer’s opinion in Dellinger and Judge King’s dissent from Judge Niemeyer’s opinion for the court, sitting en banc, in Aikens v. Ingram (previously discussed here). An important difference between the two cases, of course, is that Judge Keenan voted with Judge King in Aikens but with Judge Niemeyer in Dellinger.