Articles

July, 2017

Employer’s Attorney May Be Sued for Retaliation Under

Fair Labor Standards Act

In a 9^th Circuit Case decided June 22, 2017, a plaintiff alleged that after he filed suit against his employer in state court, the employer’s attorney, acting as its agent, retaliated against him by planning for U.S. Immigration and Customs Enforcement, (“ICE”), to take him into custody at a scheduled deposition and then to remove him from the United States.  Jose Arnulfo Arias v. Anthony Raimondo, U.S. Court of Appeals for the Ninth Circuit, 2017 U.S.App. LEXIS 11074, June 22, 2017.

The question to be decided in this case was as follows:  Can an employer’s attorney be held liable for retaliating against his client’s employee because the employee sued his client for violations of workplace laws?  The district court’s decision was no.  But the 9^th Circuit Court of Appeals said yes.

Plaintiff Jose Arnulfo Arias went to work as a milker for Angelo Dairy in 1995.  The employer did not complete and file a Form I-9 regarding his employment eligibility in the United States.

When Arias informed his employer in 1997 that he had been offered a position with a competing dairy, his employer responded that if he left to work at the other dairy, the employer would report the other dairy to federal immigration authorities as an employer of undocumented workers, which Arias was.  This threat caused Arias to forego his employment opportunity and remain with Angelo Dairy.

In 2006, Arias sued Angelo Dairy in California state court alleging causes of action for himself and other workers.  He alleged a variety of workplace violations, including failure to provide overtime pay, rest and meal periods.

However, on June 1, 2011, ten weeks before the state court trial, Angelo Dairy’s attorney, Anthony Raimondo, set in motion a plan to derail Arias’s lawsuit.  He contacted ICE to take Arias into custody at a scheduled deposition and then to remove him from the United States.  A second part of his plan was to block the legal services agency from representing him.

On May 8, 2013, Arias filed a federal lawsuit alleging retaliation under the Fair Labor Standards Act, (“FLSA”), 29 U.S.C. §201 et seq.  He alleged that Raimondo, acting as the Dairy’s agent, retaliated against him in violation of the FLSA.  In his motion to dismiss, Raimondo’s sole legal defense was that because he was never Arias’s actual employer, he could not be held liable under the FLSA for retaliation against someone who was never his employee.

The Appeals Court looked at FLSA’s anti-retaliation provision, which makes it unlawful “for any person … to discharge or in any other manner discriminate against any employee because such employee has filed any complaint …”  Section 215 (a)(3).  The FLSA defines the term “person” to include a “legal representative,” Section 203(a), and defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee,” Section 203(d), 216(b).

The court reasoned that while the wage and hour provisions of the FLSA focus on employers, the anti-retaliation provision refers to “any person” who retaliates.  29 U.S.C. Sec. 215(a)(3).

The court denied the motion to dismiss and ruled that Arias could proceed with his retaliation claim against Attorney Raimondo.