Claire G. Roehre, Valparaiso University School of Law 2014, is an Associate Attorney with Hawks Quindel, S.C. in Milwaukee.

Ninth Circuit holds undocumented laborer is able to sue employer’s lawyer for his retaliatory practices of 1) investigating the immigration status of plaintiffs, 2) contacting ICE, and 3) offering assistance in apprehending employees.

Pursuant to 29 U.S.C. § 215(a)(3) of the Fair Labor Standards Act, 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 - Arias v. Raimondo, No. 15-16120, 2017 WL 2676771 (9th Cir. June 22, 2017) – shows just how broad the FLSA’s anti-retaliation provisions can be by finding that the employer’s attorney could also be liable for retaliatory actions against an employee complaining of illegal pay practices.

Arias, an undocumented laborer on a dairy farm in California, 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 employers’ attorney, Raimondo - acting as their 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 United States.

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.

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’ actual employer, he cannot be held liable under the FLSA for retaliation against someone who was never his employee.

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’ 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. See 29 U.S.C. § 215(a)(3). 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.” See Id. § 203(d). As is such, a retaliator, like Raimondo, may become secondarily liable for his retaliatory transgressions.

Facing the threat of deportation, undocumented workers are often too fearful to shed 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.