Wednesday, June 28, 2017

More on why holding lawyers liable for retaliation to a client's employee is the worst idea

Yesterday’s post discussing Arias v. Raimondo as the worst employment-law decision of 2017 was way more controversial than I imagined. To me, it’s a no-brainer. It’s dangerous for courts to hold an employer’s lawyer liable for retaliation against the employees of the lawyer’s client. It will chill an attorney’s ability to give proper advice to one’s client, because anything that remotely could result in an employee suffering an adverse action could, under the logic of Arias, give rise to a retaliation claim. Then the comments rolled in:

As I said yesterday, bad facts make bad law. Yes, the lawyer in this case blew the whistle to ICE and actively engaged with ICE agents to work a sting to detain and deport the plaintiff-employee. And that’s terrible if it was done, as it appears, for the purpose of gaining leverage in the wage/hour case. But to hold the attorney liable for statutory retaliation against his non-employee establishes bad precedent. The Arias court does not rely on the degree of the attorney’s misconduct, or his active role in the ICE sting. The case hinges on its broad interpretation of the word “person” in the FLSA’s anti-retaliation provision.

To illustrate, let’s take this holding of Arias out of the context of its facts.

Suppose you’re outside employment-law counsel for a company. Your client calls you to request your help with an internal investigation. An employee has complained that her supervisor has been sexually harassing her. During that course of that investigation, you discover, through a review of the complaining employee’s corporate email, that she had not been performing her job. You report this malfeasance to your client, who fires the employee. She then sues for retaliation. Under the Arias holding, she can also sue the attorney. Before you tell me that Title VII defines retaliators differently than the FLSA, Ohio’s anti-retaliation provision in its employment discrimination law also defines its scope as “any person”. So while this result may be different under Title VII, under state laws like Ohio’s, Arias could work to hold an attorney liable.

Or, suppose you have an employee who takes FMLA leave for surgery. Let’s say during said FMLA leave, you discover that the employee is vacationing on a Caribbean island. And, further suppose that you discover this employee’s island vacay via his own public Facebook posts, which included photos of him on the beach, posing by a boat wreck, and in the ocean. As a result, you fire the employee for abusing and/or misusing FMLA leave by engaging in activities (verified by pictures posted on his Facebook page) that demonstrated his ability to return to work earlier than the end of the FMLA leave. Sound familiar? These are the exact facts of Jones v. Gulf Coast Health Care, which held the employer liable for FMLA retaliation. And, if that employer’s lawyer gives advice on the termination, under Arias, that lawyer could also be sued for retaliation.

I could go on, but you get the point. We attorneys need to be able to provide advice to our clients free from fear that our clients’ employees will sue us for retaliation when that advice results in termination, discipline, or some other adverse action. We might win these cases more than we lose them, but we don’t want to be sued in these instances in the first place. Arias may have stepped over a line, but to use these facts to justify a broad rule makes it difficult for all management-side employment attorneys to do our jobs.

If you still disagree, the comment box is below.