Can an outside attorney defending an employer in a lawsuit under the Fair Labor Standards Act be liable for retaliation against the plaintiff-employee based on litigation tactics? One court answered that question “yes” last week.

Are these judges crazy? You decide.

In Arias v. Raimondo, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed dismissal of a lawsuit filed by an undocumented worker against his former employer’s attorney. Here’s what happened:

Jose Arnulfo Arias worked for the Angelo family’s dairy in California for several years, while he was in the United States illegally. In 2010, he sued the family alleging, among other things, failure to pay overtime, and his case was scheduled to go to trial in August 2011. In June 2011, the outside attorney for the Angelos, Anthony Raimondo, began emailing an auditor with the U.S. Immigration and Customs Enforcement and began making arrangements for Mr. Arias to be arrested by ICE during his deposition. As a result, Mr. Arias alleges, he settled the case because he was afraid of being deported.

The lawsuit alleges that Mr. Raimondo has used this tactic (reporting plaintiffs to ICE) on five other occasions and admitted that he routinely checks plaintiffs’ immigration status when defending employment lawsuits.

After his case against the Angelos settled, Mr. Arias sued them again, along with Attorney Raimondo, this time for FLSA retaliation. The Angelos settled, but Mr. Raimondo filed a motion to dismiss on the ground that he was not Mr. Arias’s employer. A federal district court agreed, and dismissed the case. But on appeal, the Ninth Circuit panel reversed and said that the case could go forward.

Mr. Arias had a lot of support from immigration and other groups, including the National Immigration Law Center, Asian-Americans Advancing Justice, Centro Legal de la Raza, the UCLA Center for Research and Education, and the United Food and Commercial Workers International Union.

What on earth –?

The decision was based on the language of the FLSA. The minimum wage and overtime provisions apply to “employers.” The retaliation provision, on the other hand, says that it is unlawful “for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . under or related to this chapter.” (Emphasis added.) The FLSA definition of “person” includes a “legal representative.”

Because the language of the statute says that a “person” may not retaliate, and because “person” includes a “legal representative,” the panel found that Mr. Raimondo could be liable for retaliating against Mr. Arias for exercising his rights under the FLSA.

Commentary

Crazy as it seems, I do think the panel has a valid point based on the language of the FLSA and a comparison of the minimum wage/overtime provisions with the retaliation provision. To that extent, I don’t entirely agree with my blogging buddy Jon Hyman, who asks whether this is “the worst employment law decision of 2017.” Moreover, if I had been thinking about becoming licensed to practice law in California (I’m not), I would not be inclined to torch my application as a result of this decision, as is another blogging buddy, Eric B. Meyer. (Click on the link at the end of Eric’s post, but I really think he is kidding.)

I don’t have a lot of sympathy for Mr. Raimondo, either. Checking plaintiffs’ immigration status is one thing, but setting them up for arrest and deportation strikes me as — well — rotten, if that’s what he did.

That said, I don’t particularly like this Ninth Circuit decision, either. We lawyers should, of course, be ethical and professional in our dealings with opposing counsel and opposing parties, but you can’t do right by your client while being a wimp. Would it have been “retaliatory” for Mr. Raimondo to simply check on Mr. Arias’s immigration status and to use the information to his client’s advantage in a more moderate way? Is it “retaliatory” to conduct a criminal background check on a plaintiff, as is done in almost any lawsuit, or to subpoena the plaintiff’s personnel file from his current employer? Is it “retaliatory” to subject a plaintiff to a withering cross-examination? What if the cross-examination makes him cry? Is it “retaliatory” if a deposition goes longer than eight hours, or if we make the plaintiff answer our last question before we let him go outside to smoke a cigarette? Is it “retaliatory” to insist on a “nuisance value” settlement?

Unfortunately, we don’t know the answers to these questions, because the Ninth Circuit panel did not address them at all. The court did not acknowledge in any way that its decision could have troubling implications for lawyers who are trying to provide effective representation to their clients. That is my biggest complaint. The panel should have clarified that the holding was limited to extreme tactics by lawyers that were equivalent to those allegedly engaged in by Mr. Raimondo. Or, if what they really meant to say (which I still can’t believe) was that unpleasantness in the normal course of FLSA litigation can also be actionable “retaliation,” then they should have admitted it. In which case, I would agree with Jon that the decision is “flat out bonkers.”