In Arias v. Raimondo, decided on June 22, 2017, the Ninth Circuit decided that an employer’s attorney can be sued for retaliating against his client’s employee, a plaintiff who sued for alleged workplace violations.  This decision is unprecedented as it extends the anti-retaliation section of the Fair Labor Standards Act (“FLSA”) provisions beyond an employer to its attorney.

Jose Arias was working as a cow milker for Angelo Dairy.  When the Angelos hired Arias, they did not file an I-9 form regarding Arias’ citizenship and employment eligibility in the U.S.  Instead, they used his citizenship status as a threat, warning him that if he left their employ, the Angelos would report his next employer to ICE as a company that hired undocumented workers.  This caused Arias to remain with Angelo Dairy for over 10 years.  In 2006, Arias sued Angelo Dairy for a variety of claims, including failure to pay overtime pay and rest/meal periods.

In 2011, ten weeks before trial, the Angelo’s attorney, Anthony Raimondo enlisted the help of ICE to detain Arias at a deposition and deport him from the United States.  This plot was captured in emails between Raimondo, his clients the Angelos, and ICE.  Plaintiff Arias settled the wage/hour claims, and filed a new lawsuit alleging violation of FLSA and retaliation by Raimondo, acting as the Angelos’ agent.  Arias cited in the complaint that Raimondo had a custom and practice of investigating the immigration status of plaintiffs who sued his clients, and working with ICE to apprehend these employees.  Raimondo asserted that he could not be held liable for retaliation under the FLSA (29 U.S.C. § 215(a)(3)) because he was never Arias’s actual employer.  Angelo Dairy and the Angelos settled their part of this case at an early stage.

The district court granted Raimondo’s motion to dismiss, concluding that there were no allegations that Raimondo had any control over Arias’s employment relationship.

The Ninth Circuit overturned the district court’s ruling.  It reasoned that although FLSA sections 206 and 207, which relate to wage and hour responsibilities and violations, require an employer-employee relationship, anti-retaliation provisions are designed to protect access to the legal process. Section 215(a)(3) makes it unlawful “for any person . . . to discharge or in any other matter discriminate against any employee because such employee has filed any complaint . . . under or related to this chapter.  The term “person” is defined within section 203(a) of FLSA to include a “legal representative.”   The Ninth Circuit compared this analysis to Title VII’s anti-retaliation provision (42 U.S.C. § 2000e-3(a)), which is not limited to discriminatory actions that affect the terms and conditions of employment.  The court noted that Raimondo could not be liable under the wage and hour provisions of FLSA but only the anti-retaliation provisions, though he could be held liable under section 216(b) for economic penalties of his transgressions.

Lawyers and clients should be aware that any adverse action taken by the attorney on behalf of his/her employer client may potentially form the basis for an employee retaliation suit under the FLSA.

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