Labor & Employment Blog: Ninth Circuit Finds Employer’s Lawyer Liable for FLSA Retaliation:

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    Ninth Circuit Finds Employer’s Lawyer Liable for FLSA Retaliation

    A recent case in the Ninth Circuit Court of Appeals shows just how broad the FLSA’s anti-retaliation provisions can be. Claire Roehre discusses the case, which involves retaliation by an employer’s attorney against an undocumented worker for bringing a lawsuit over numerous workplace violations.

    Claire G. Roehre

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    Pursuant to 29 U.S.C. § 215(a)(3) of the Fair Labor Standards Act (FLSA), it is unlawful for any person to discharge or discriminate against any employee because such employee has filed any complaint alleging violation under the FLSA. Employees are protected regardless of whether the complaint is made orally or in writing.

    A recent case in the Ninth Circuit Court of Appeals shows just how broad the FLSA anti-retaliation provisions can be.

    Claire G. Roehre com CROEHRE hq-law Claire G. Roehre, Valparaiso 2014, is an associate attorney with Hawks Quindel S.C., Milwaukee, where she practices primarily plaintiff-side wage and hour and employment cases.

    In the case – Jose Arnulfo Arias v. Anthony Raimondo1 – the Ninth Circuit found that the employer’s attorney, as well as the employer, can be liable for retaliatory actions against an employee complaining of illegal pay practices.

    Case Details

    Arias, an undocumented laborer on a California dairy farm, brought a lawsuit in 2006 against his employers in state court, citing numerous workplace violations, including failure to provide overtime pay and rest and meal periods.

    The employer’s attorney, Raimondo, acting as the employer’s agent, retaliated against Arias 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 U.S.

    Arias became aware that Raimondo had provided information to the immigration authorities. Fearing that he would be deported and separated from his family, Arias suffered anxiety, mental anguish, and other emotional distress from Raimondo’s retaliatory action.

    Raimondo on at least five additional occasions, and consistent with his practice of investigating the immigration status of plaintiffs who bring legal claims against his client, had contacted ICE and offered his assistance to ICE in apprehending those employees.

    The Lawsuit and Findings

    In 2013, Arias filed a lawsuit against Raimondo, alleging Raimondo retaliated against him for filing the original lawsuit against Raimondo’s clients in state court. Raimondo’s sole legal defense was that, because he was never Arias’s actual employer, he cannot be held liable under the FLSA for retaliation against someone who was never his employee.

    The Ninth Circuit rejected Raimondo’s defense and held that the FLSA prohibits retaliation by “any person,” not just the employer. The Ninth Circuit also differentiated Arias’s retaliation claim from his wage and hour claim, holding wage and hour claims can only be brought against a person’s employer.

    The purpose of the FLSA’s anti-retaliation provision is to enable workers to avail themselves of their rights. The anti-retaliation provision refers to “any person” who retaliates.2 And in turn, section 203(d) extends this concept to “any person acting directly or indirectly in the interest of an employer in relation to an employee.”3 As is such, a retaliator, like Raimondo, may become secondarily liable for his retaliatory transgressions.

    A Layer of Protection

    Facing the threat of deportation, undocumented workers often fear shedding light on any workplace violations they experience. Unfortunately, it’s not uncommon for employers to use immigration statuses to target their undocumented employees.

    The Ninth Circuit’s decision provides a layer of protection against retaliation for immigrant workers when bringing claims against their employers.

    This article was originally published on the State Bar of Wisconsin’s Labor & Employment Law Section Blog. Visit the State Bar sections or the Labor & Employment Law Section web pages to learn more about the benefits of section membership.


    1 No. 15-16120, 2017 WL 2676771 (9th Cir. June 22, 2017)

    2 See 29 U.S.C. § 215(a)(3).

    3 Id. § 203(d).

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