An attorney representing his employer-client calls Immigration and Customs Enforcement (ICE) to inquire about the plaintiff’s immigration status. Is that potentially retaliation under the employment laws? If it is, can the attorney be sued personally for it? According to the Ninth Circuit, the answer is yes on both counts, and the Supreme Court may have the final say on such a scenario.

For those of you who are tempted to stop reading because you aren’t a lawyer (and may not care if your lawyer can be sued)—not so fast. If a non-employer can be sued personally for retaliation, this could have broad application to HR professionals, accountants, private investigators, or other consultants.

Background

Jose Arias sued his former employer, Angelo Dairy, for violation of wage-and-hour laws under the California Labor Code. Dairy hired an attorney, Anthony Raimondo, to defend the case. In 2011 as the trial date approached, Raimondo contacted ICE to see about Arias’s immigration status (which apparently was potentially problematic for Arias). This led to Raimondo having multiple communications with ICE about potentially taking Arias into custody. Additionally, it led to disqualification of Arias’ legal counsel, the California Rural Legal Assistance group, which was barred by statute from representing undocumented aliens. A month before trial, Arias agreed to settle the case “due in substantial part to the threat of deportation created by [Raimondo’s] communications with ICE.” Raimondo had apparently contacted ICE on previous occasions related to other employees who asserted workplace rights against his clients.

After settling his wage and hour suit, Arias then filed a retaliation case against Dairy, as well as Raimondo personally. Arias alleged that Raimondo’s call to ICE was retaliation under the FLSA and intentional infliction of emotional distress.

District Court: The Attorney Is Not an Employer and Cannot Be Sued

The preliminary issue was whether Arias could sue Raimondo for FLSA retaliation when Raimondo was not Arias’ employer. The FLSA’s anti-retaliation statute makes it unlawful for “any person” to “discharge or in any other manner discriminate against any employee because such employee has . . . instituted any proceeding under” the FLSA. The Act defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee…”

Arias settled and dismissed his retaliation claims against Dairy, but not against Raimondo personally. The District Court dismissed Arias’ complaint against Raimondo, finding that an aggrieved employee can only sue his or her employer under the FLSA and that the FLSA’s provisions referred to an employer-employee relationship. The District Court found that Raimondo never acted “directly or indirectly in the interest of the employer” in employment matters. In coming to this conclusion, the District Court considered “the total employment situation and economic realities of the work relationship.” Arias appealed, and the Ninth Circuit reversed.

Ninth Circuit: The FLSA’s Anti-Retaliation Section Is Broader than Just the Employer-Employee Relationship

On appeal, the Ninth Circuit reversed, explaining that the FLSA provisions for wage-and-hour violations and retaliation claims “are as different as chalk is from cheese.” While the employer umbrella for wage-and-hour claims looks to the economic realities test, when a plaintiff alleges a retaliation claim it “is a different animal altogether.” As the court expressed:

This distinctive purpose [of the anti-retaliation provision] is not served by importing an “economic control” or an “economic realities” test as a line of demarcation into the issue of who may be held liable for retaliation. To the contrary, the FLSA itself recognizes this sensible distinction…. by prohibiting “any person”—not just an actual employer—from engaging in retaliatory conduct. By contrast, the FLSA’s primary wage and hour obligations are unambiguously imposed only on an employee’s de facto “employer,” as that term is defined in the statute. Treating “any person” who was not a worker’s actual employer as primarily responsible for wage and hour violations would be nonsensical.

The appellate court also seemed disturbed by Raimondo’s “underhanded plan to derail Arias’ lawsuit” and history of reporting employee-claimants to ICE.

Attorney Asks the Supreme Court to Decide

Raimondo did not take kindly to the Ninth’s Circuit’s opinion, and on October 31, 2017, filed a petition for a writ of certiorari, essentially asking the U.S. Supreme Court to hear the case. Raimondo contended that the Ninth Circuit’s conclusion flouted prior precedent on the FLSA’s definition of employer. The petition noted that the majority of circuits use the economic realities test to determine who is an employer, and do not differentiate between a wage-and-hour versus a retaliation-based claim.

Stay Tuned

If the Ninth Circuit opinion stands, it could have far-reaching consequences for the relationships among employers, their attorneys, and others who could be dissuaded from representing employers or from pursuing certain strategies where they could become potential defendants in FLSA retaliation cases. As Raimondo’s petition tries to illustrate, not just attorneys, but also accountants, HR personnel, and even a gardener, could become defendants for playing some role in an adverse action if ICE has been contacted. An attorney may have legitimate, non-retaliatory reasons for asking ICE about an immigration status, but the ruling may chill attorneys from representing employers and hamper employers’ efforts to secure counsel. We will see if the Supreme Court makes a final determination on this significant issue, but the Ninth Circuit’s decision creates the platform for an individual (attorney or otherwise) who is not the employer and does not control the employer to be sued for retaliation under the FLSA.