BlogLine

Don’t Retaliate Over Spilled Milk

8/8/17

By: Timothy J. Holdsworth

The Ninth Circuit Court of Appeals recently held that an employer’s attorney can be held liable under the retaliation provisions of the Fair Labor Standards Act (“FLSA”). In Arias v. Raimondo, 860 F.3d 1185, 1186 (9th Cir. 2017), an undocumented employee of a dairy farm in California filed a lawsuit in state court alleging various workplace violations under state law, including failure to pay overtime pay and provide rest and meal periods. Several weeks before the trial in the state lawsuit, the employer’s attorney began communicating with agents from U.S. Immigration and Customs Enforcement (“ICE”) in an attempt to have the employee taken into custody at a scheduled deposition and remove him from the country. The employee learned about the attorney’s actions and quickly settled his claims.

The employee then filed a federal lawsuit against his employer and the attorney for retaliation under the FLSA. The employee alleged that the deportation threats were apparently common practice for the attorney and even found an email the attorney purportedly wrote that stated:

“The time when I have had litigants deported, I have always simply taken action rather than make any threats. The attorneys find out when their clients are already gone.”

The district court dismissed the action against the attorney because it found that only an “employer” can be liable for retaliation under the FLSA.

The Ninth Circuit reversed, holding that the attorney could be liable for retaliation. Specifically, the panel held the FLSA’s anti-retaliation provision specifically applies to “any person acting directly or indirectly in the interest of an employer in relation to an employee.” The FLSA defines “person” to include a “legal representative.”

The case will now return to the district court to determine if the attorney’s conduct constitutes retaliation under the statute.

This case serves as an important reminder to employers and attorneys alike that the reaction to a lawsuit can be just as damaging and costly, if not more, than the substantive wage and hour violations. It should also remind us that claims for substantive wage and hour violations and claims for retaliating against an employee require different evaluations, strategies, and actions. As the Ninth Circuit stated, “Retaliation is a different animal altogether.”

Moral of the story? Employers need to proceed carefully when facing claims from a current or former employee. Good legal advice can prevent a situation from turning bad to worse.

If you have any questions about federal, state, or local wage and hour laws, please contact Tim Holdsworth at tholdsworth@fmglaw.com or any of the attorneys in FMG’s Labor & Employment Law Section.