A worker can sue his employer and the company’s lawyer for FLSA retaliation, says Ninth Circuit

Let’s go live to California for an immediate reaction from the defense bar…

I’d like to start by apologizing to the State of New Jersey. You’ve got a long way to go and, hopefully, you never get there.

Now, let’s check out the Ninth Circuit’s opinion — actually, it’s here — in Arias v. Raimondo. The issue presented to the appellate court was whether an employer’s attorney can be held liable for retaliating against his client’s employee because the employee sued his client for violations of workplace laws?

The lower court said no. But, the Ninth Circuit said yes.

Now, they say that bad facts make bad law. And, in this case, we had some bad facts. The Ninth Circuit described a “double barrel plan” in which an employer and its lawyer communicated with a U.S. Immigration and Customs Enforcement (“ICE”) forensic auditor about the plaintiff, an undocumented worker who had already filed a lawsuit against the company alleging various wage and hour violations, among other things. One particular email stood out to me. After a failed mediation on June 1, 2011, between the worker and the company, the employer’s lawyer emailed ICE:

“I hope this helps. [Plaintiff] will be attending a deposition next week. If there is an interest in apprehending him, please let me know so that we can make the necessary arrangements. . . .”

Apparently, exchanges like this one had a chilling effect on the plaintiff’s desire to pursue his wage and hour claims. And, the Ninth Circuit had little trouble connecting the retaliation dots to the lawyer. I’ll paraphrase below:

• The FLSA prohibits any “person” from retaliating against an employee that complains about wage and hour violations.
• The FLSA defines the term “person” to include a “legal representative.”
• The FLSA allows an aggrieved plaintiff to sue his “employer” for retaliation.
• The FLSA defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

Indeed, the panel held that unlike the Fair Labor Standards Act’s wage and hour provisions, provisions governing retaliation, ” a different animal altogether,”apply to “any person” and do not require that a defendant be the plaintiff’s employer.

Now, where did I put my California Bar applications? Oh, right…