Tuesday, June 27, 2017

Is this the worst employment law decision of 2017?


I’ll be vacationing in California with my family the first two week of July. After reading the 9th Circuit’s decision in Arias v. Raimondo—holding an employer’s attorney for liable for FLSA retaliation against his client’s employee because the employee sued his client for unpaid overtime—I’m thinking of adding the 9th Circuit to my list of tourist stops in San Francisco to see if courthouse resembles a Salvador Dali painting. Because this decision is flat out bonkers.

The facts are fairly simple. After José Arias, sued his employer, Angelo Dairy, for unpaid overtime under the FLSA, he alleges that Angelo’s attorney, Anthony Raimondo, reported him to Immigration and Custom Enforcement as an undocumented worker and put a plan in motion for ICE agents to detain him for deportation as his deposition in the FLSA lawsuit.

Arias claimed that Raimondo, acting as Angelo’s agent, retaliated against him in violation of FLSA for filing his overtime lawsuit. Raimondo did not deny his role in setting up the sting, and claimed instead that he could not be liable under the FLSA for retaliating against someone who was never his employee.

The 9th Circuit sided with the employee.
In our case, the difference in reach between FLSA’s substantive economic provisions and its anti-retaliation provision is unmistakable. The wage and hours provisions focus on de facto employers, but the anti-retaliation provision refers to “any person” who retaliates. 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.” Thus, Congress clearly means to extend [the anti-retaliation section]’s reach beyond actual employers. Raimondo’s activity in this case on behalf of his clients illustrates the wisdom of this extension. 
The FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others. … Such a statute must not be interpreted or applied in a narrow, grudging manner.” 
Wow. As one friend put it, “The 9th circuit has officially lost its mind…” We, as attorneys, should be free to advise our clients without fear of retribution from, or liability to, opposing parties in our client’s litigation. But, they say bad facts make bad law, and the attorney’s conduct in this case would certainly qualify as bad facts. 

If you are looking for an employment attorney to help set up an ICE sting at a deposition to detain and deport a plaintiff in the hopes of prematurely ending a lawsuit, then I’m not your guy. In fact, if you asked me about this strategy, I would advise you about the liberal standard for retaliation (adverse action = any act that would reasonably deter one from exercising their statutory rights), and suggest that contacting ICE would likely subject you to a retaliation claim. I would not aid or abet that strategy, but would have to defend it if you overrode my advise and blew the whistle to ICE.

While this attorney may have crossed the line in this case, I am very concerned about a legal standard that appears to open the liability door to attorneys for retaliation against their clients’ employees.

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