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Employers are aware of the risk of being sued by their employees for retaliation against an employee that is engaging in a protected activity, but what about the employer’s attorney?  According to a recent case brought to the Ninth Circuit Court of Appeals, an employer’s attorney may also be sued for retaliation under the federal Fair Labor Standards Act (FLSA) (Arias v. Raimondo, 860 F.3d 1185 (9th.Cir. 2017)).

The case involves an employee with an illegal immigration status.  The employee was hired to work for a dairy and, at the time of employment, he was not asked to complete a Form I-9, verifying his eligibility to work in the United States.  A few years after being hired, the employee expressed a desire to work for another dairy company.  His current employer claimed that if he accepted the new job, they would report the new employer for hiring undocumented workers.  The employee, as a result, did not accept the new position.

Instead, the employee filed a wage and hour violations suit against the dairy employer.  The employer’s attorney then contacted the U.S. Immigration and Customs Enforcement (ICE) to report the employee and “set in motion an underhanded plan to derail (the employee’s) lawsuit.”

The employee claimed that he was afraid of being deported and separated from his family which, in part, led him to settling his lawsuit against the employer.

The employee then sued the employer and the employer’s attorney for retaliation under the FLSA.  The attorney argued that because he was not the employer, he could not be sued for retaliation, and the trial court dismissed the case.  The employee appealed the case to the Ninth Circuit Court of Appeals and the panel reversed the district court’s dismissal of the retaliation claim under the FLSA.  The appeals court explained that the FLSA’s anti-retaliation provision applies to “any person” and does not require that a defendant be the plaintiff’s employer. The FLSA makes it unlawful for “any person” to retaliate against an employee who exercises his or her legal rights under the law. The FLSA gives individuals the right to sue their employer for retaliation and defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

In addition to federal prohibitions, this case is an illustration of the types of unfair immigration-related practices prohibited under California law. Labor Code section 244 prohibits employers from retaliating against an employee by reporting or threatening to report the employee’s suspected immigration status to a government agency.

Form I-9 is required by U.S. Citizenship and Immigrations Services and is used for verifying the identity and employment authorization of individuals hired to work in the United States.  All U.S. employers must ensure completion of Form I-9 for all employees.  Although it is unlawful to work in the United States without legal authorization, once an employee is hired, he or she has all the rights offered by the state, regardless of the employee’s actual immigration status.  Employers are obligated to pay the employee for any and all time worked. Employers cannot threaten to report employees to ICE as a means of avoiding paying proper wages or complying with labor laws.

Employers, and now employers’ attorneys, who engage in unfair immigration-related practices will face penalties.  If you are an employer and have questions on Form I-9 or any immigration-related employment law related matter, please contact an employment law attorney at Schneiders & Associates for advice and assistance.

By: Theodore J. Schneider, Esq.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.