Undocumented Worker Can Sue Employer’s Lawyer for Retaliation

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By Laura D. Francis

An undocumented dairy worker in California can sue his employer’s attorney for trying to get him deported in retaliation for his wage-and-hour claims.

The Fair Labor Standards Act prohibits retaliation by “any person,” not just the employer, the U.S. Court of Appeals for the Ninth Circuit held June 22 ( Arias v. Raimondo , 2017 BL 214215, 9th Cir., No. 15-16120, 6/22/17 ). That section of the law is separate from its wage-and-hour provisions, under which claims only can be brought against a person’s employer, it said.

The case has potentially broad implications for immigrant workers because it adds an additional layer of protection from retaliation. Many undocumented workers are afraid to bring wage-and-hour and other claims for fear of deportation.

For undocumented workers, “there are so many more risks involved in coming forward,” Stacy Villalobos of Legal Aid at Work in San Francisco told Bloomberg BNA June 22. To use the workers’ immigration status “as a weapon to undermine their substantive rights is egregious,” she said.

Attorney Had History of Calling ICE

In this case, Jose Arias had proof that Anthony Raimondo, the attorney for Angelo Dairy, called Immigration and Customs Enforcement on at least five occasions when workers brought wage-and-hour claims against his clients.

Raimondo used the tactic to force Arias into settling his wage-and-hour case against Angelo Dairy, Arias claimed.

In Arias’ subsequent retaliation case against Raimondo, Raimondo’s defense was that he wasn’t Arias’ employer, so he couldn’t be liable for retaliation.

The Ninth Circuit disagreed. The “distinctive purpose” of the anti-retaliation provision is to allow workers to avail themselves of their rights, the court said. That purpose wouldn’t be served if it has to be the employer engaging in the retaliation, it said.

That’s different from the FLSA’s wage-and-hour provisions, which rely on “tests involving economic control and economic realities to determine who is an employer, because by definition it is the actual employer who controls substantive wage and hours issues,” the court said.

Immigration-Based Retaliation ‘Common’

“It’s all too common for workers to have ICE called,” said Villalobos, one of Arias’ attorneys. And “savvy” employers may find “more roundabout ways to target immigrant workers” than simply calling ICE themselves, she said.

In addition to damages, Arias is “trying to vindicate that this type of action—using someone’s immigration status or perceived immigration status to undermine their substantive rights—is something that’s unlawful,” Villalobos said.

The case now goes back to the lower court.

Scott Dixler of Horvitz & Levy in Burbank, Calif., an attorney for Raimondo, didn’t immediately respond to Bllomberg BNA’s request for comment.

Judges Stephen S. Trott, Kim McLane Wardlaw, and Ronald M. Gould issued the decision.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Chris Opfer at copfer@bna.com

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