Ninth Circuit: An Employer’s Attorney is Subject to FLSA Anti-Retaliation Rules

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June 22, 2017

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In Arias v. Raimondo, the U.S. Court of Appeals for the Ninth Circuit stated that the anti-retaliation provisions of the Fair Labor Standards Act (“FLSA”) apply not only to employers, but to “any person,” including an employer’s attorney.

In Arias, employee Jose Arias was hired by Angelo Dairy, but did not complete a Form I-9.  Rather than complying with federal employment authorization requirements, Angelo Dairy threatened Arias with immediate notification to immigration authorities if Arias sought work elsewhere.  When Arias later sued Angelo for unpaid overtime and rest periods, Angelo Dairy’s attorney, Raimondo, exchanged e-mails with the U.S. Immigration and Customs Enforcement, allegedly planning to have Arias taken into custody and removed from the U.S. in order to halt the lawsuit.

Arias claimed that Raimondo’s actions, taken on behalf of Angelo Dairy, constituted as retaliation against Arias for filing the wage and hour suit. The Ninth Circuit reversed a district court dismissal, stating that an employer’s attorney can be liable under the FLSA for retaliating against a client’s employee.

While the wage and hour provisions of the FLSA apply specifically to employers, the Ninth Circuit stated that the anti-retaliation provisions of the FLSA are much broader in scope.  The Ninth Circuit pointed to the FLSA’s anti-retaliation provision, which specifies that it is unlawful for “any person” to discharge or discriminate against an employee for filing complaints related to the FLSA.  The definition of “person” includes a “legal representative.” Notably, this decision aligns with similar decisions by the Third and Seventh Circuits.

In all, the Arias case emphasizes that employers must be careful when responding to FLSA claims.  The anti-retaliation provisions of the FLSA cannot be circumvented by having third parties carry out retaliatory actions against a complainant.

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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

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