In defending employers in lawsuits, I am often asked whether the employer can countersue against its employee. I respond by telling that employer three things: (1) Most often a viable claim cannot be asserted against the employee; (2) even if a claim could be asserted, the employee doesn’t have the money to pay it; and (3) a lawsuit can be seen as retaliation and give the employee another reason to sue the employer.
Now, according to Arias v. Raimondo, it appears that the lawyer who helps his client retaliate against an employee for asserting his/her rights may face liability for retaliation.
Mr. Arias worked for Angelo Dairy. In 2006 he filed a lawsuit asserting various wage and hour claims such as unpaid wages and missed meal and rest periods. He also asserted claims under the Private Attorneys’ General Act (“PAGA”), a law that allows employees to assert causes of action against employers for violations of the Labor Code.
Prior to the trial of the lawsuit, the attorney for Angelo Dairy, Anthony Raimondo, contacted the U.S. Immigration and Customs Enforcement (“ICE”) to take Mr. Arias into custody at a scheduled deposition. The communications between Mr. Raimondo and ICE are documented in the court’s opinion.
Rather than face potential deportation, Mr. Arias settled his lawsuit. Mr. Arias then filed a lawsuit against Mr. Raimondo claiming that he had a pattern and practice of contacting ICE with respect to employees who assert workplace rights against his clients. (Mr. Arias also sued Angelo Dairy who settled its case.) Mr. Raimondo moved to dismiss, claiming that a retaliation lawsuit could be brought only against an employer. The federal District Court agreed.
The Ninth Circuit Court of Appeal disagreed. It looked at the plain language of the Fair Labor Standards Act (“FLSA”) which makes it unlawful “for any person … to discriminate against any employee because such employee has filed any complaint [under the FLSA].” 29 U.S.C. § 215(a)(3). Contrary to popular belief that lawyers are not human, the court noted that the FLSA includes a “legal representative” as a person. 29 U.S.C. § 203(a). But the real legal issue arises because the FLSA provides for a cause of action against an employer who violates section 215. Is the employer’s lawyer an employer? According to the Ninth Circuit Court of Appeal the answer is yes because the FLSA defines employer as any person acting in the employer’s interest. 29 U.S.C. § 203(d).
The Ninth Circuit says the intent of Congress to include more than just an employer within the reach of the anti-retaliation provision of the FLSA as “clear.” I can’t agree there. But the impact of this decision is clear – anyone can be held liable for retaliating against an employee who asserts his/her rights under the FLSA (and probably many other statutory provisions).
My advice doesn’t change much. Before an employer, or its lawyer, or anyone else associated with the employer wants to take action against an employee who has sued the company, consider these three points: (1) Most often a viable claim cannot be asserted against the employee; (2) even if a claim could be asserted, the employee doesn’t have the money to pay it; and (3) a lawsuit can be seen as retaliation and give the employee another reason to sue the employer and everyone else.
Don’t make that mistake.
You can read the opinion here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/22/15-16120.pdf