Employee Can Sue Company Lawyer for Retaliation

Here’s a first – a federal appeals court has allowed an employee to sue his employer’s attorney for arranging to have immigration officials come to the employee’s deposition to take him into custody for deportation.

José Arnulfo Arias, an undocumented worker, was hired by Angelo Dairy in 1995 without being asked to submit documents for the I-9 form. Thereafter, the company used Arias’ undocumented status to intimidate him against leaving to work elsewhere.

In 2006, Arias sued the company in California state court for a variety of state and federal wage claims, including claims that the company failed to pay him mandated overtime under the Fair Labor Standards Act. The case was set for trial in August, 2011.

Litigation Strategy Courtesy of Doctor Evil?

A few months before the trial was to begin, the company’s attorney Anthony Raimondo decided that the surest way to win the case was to get U.S. Immigration and Customs Enforcement (“ICE”) to arrest Arias because of his undocumented status and deport him. He then contacted ICE, provided all the information that they needed to verify his status and facilitated their plan to apprehend him by advising them of the date and location of Arias’ deposition.

Interestingly, this was not the first time that Raimondo had used this trial “strategy.” In fact, he declared in documents filed with the court that he regularly investigates the immigration status of people suing his clients and had advised and assisted the authorities on at least five prior occasions in just the same way as he did here.

Arias got wind of the scheme and decided to settle his claims with the company out of fear that he might actually be deported and separated from his family.  Thus, it would seem that Raimondo’s scheme to protect his client from a lawsuit actually paid off.

Lawsuit Number 2

Or perhaps not, because in 2013, Arias filed a new complaint in federal court claiming that the company, as well as Raimondo as the company’s agent, retaliated against him in violation of the FLSA by threatening to have him deported after he filed the original lawsuit against the company.  The company settled their part of the lawsuit early on but Raimondo decided to fight the case on the grounds that he could not be sued under the FLSA because he was not Arias’ employer.

The lower court agreed with Raimondo and dismissed the lawsuit.  Arias appealed to the Ninth Circuit Court of Appeals, who reversed and remanded the matter for trial.  In doing so, they focused on the following critical provisions of the FLSA:

–  It is unlawful for “any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint . . . under or related to this chapter.”

–  The term “person” includes “legal representative”; and

–  The law authorizes a lawsuit against any “employer” and defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

Court Says Lawyer Behaved Badly

The court then observed that there are two types of claims under the FLSA and that they are “as different as chalk is from cheese.”  The first type of claim seeks relief from actual workplace practices that ultimately are deemed unlawful.  These necessarily apply only to the employer who has actual control over the workplace practices being challenged.  As such, only an employer may be held liable for these practices and Raimondo’s defense therefore would be legitimate in the face of such a claim.

However, the second type of claim seeks to preserve the ability of employees to pursue their legal rights through the legal system.  In those instances, the Ninth Circuit concluded that by using the term “person” in the retaliation language, Congress obviously intended to apply these restrictions to more than just employers.  In fact, they observed that Raimondo’s behavior in this matter demonstrated the wisdom of Congress’s decision to do so.  As such, they ruled that Arias could proceed with his claim that by threatening deportation, Raimondo was a “person” who retaliated against Arias for filing the original lawsuit against the company.

As a final matter, the court noted that should Arias prevail, Raimondo would not be liable for the unpaid overtime and other monetary claims that Arias had under the FLSA because those would only be an employer’s responsibility.  However, Raimondo could be held liable for a monetary penalty if he is found to have retaliated unlawfully, and a penalty in an amount equal to those wages and other monetary losses could be ordered.

Bottom Line

This was an unusual decision but it presumably resulted from unusual circumstances.  It is difficult to imagine courts allowing lawyers to be sued simply for representing their clients no matter how aggressive that representation might be. However, where the lawyer crosses ethical line and goes to outrageous extremes, as was the case in this instance, perhaps an extreme result is to be expected.