Liability for Retaliation Claims Against an Employer Includes “Any Person”

The Ninth Circuit Court of Appeal recently held that an employer’s attorney could be liable for retaliation after he reported an undocumented employee in a wage and hour claim to the Immigration and Custom Enforcement agency. (Arias v. Raimondo (9th Cir. June 22, 2017, No. 15-16120), 2017 WL 2676771.)

In Arias v. Raimondo, the employee, Arias, sued his former employer’s attorney, Raimondo, because the attorney reported Arias to ICE to take him into custody at his deposition in his wage and hour case against his employer, Angelo Dairy. Arias sued Raimondo for retaliation claiming Raimondo acted as an agent of his employer.

Raimondo did not deny his actions, but claimed he could not be responsible for retaliation to someone who was never his employee.

Retaliation against an employee is prohibited by “any person” under the Fair Labor Standards Act (“FLSA”). “Person” includes a legal representative, employer, and any person acting directly or indirectly in the interest of an employer in relation to an employee.

In finding in favor of the employee, the court contrasted the differences between FLSA’s anti-retaliation provisions, which applies to any person, with the wage and hour obligations, that applies to employers. The Court found the retaliation provisions are “remedial and humanitarian” with the “distinctive purpose” to “enable workers to avail themselves of their statutory rights” designed to protect them. In enforcing this against “any person” this extends the concept of anti-retaliation to persons beyond actual employers. This is distinct from the wage and hour obligations that extends to only “de facto” employers or employers who exercise economic control over employees.

The ruling is an eye opener for attorneys and employers alike. It is a reminder to employers to not retaliate against employees for making employment claims, or to permit or enable others to retaliate against employees on their behalf. For attorneys, this is a lesson to consider the ramifications of your actions taken on behalf of your employer clients under FLSA.

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