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Recent Case Suggests that Attorney Litigation Strategies May Be FLSA Retaliation


The issue addressed in a recent Ninth Circuit case was whether the litigation strategies of an attorney representing an employer in an FLSA suit can serve as the basis for a retaliation claim. According to the federal appellate court, the answer was yes. This is a unique and controversial decision.

The FLSA provision regarding overtime pay

The Fair Labor Standards Act (FLSA) requires employers to pay their workers “time and a half” for all work that exceeds eight hours a day, or forty hours a week. There are very few specific exceptions to this rule. Despite this clear mandate, there are many employers who try various different methods to avoid paying the premium wage for overtime, while still reaping the benefits from their hard-working employees.

Attorney’s litigation strategy forced employee to settle

In Arias v. Raimondo, Jose Arnulfo Arias was employed with the Angelo family dairy business in California. Arias was in the United States illegally. He filed suit against his employer in 2010 for their failure to pay him overtime in violation of the Fair Labor Standards Act. However, in 2011, the employer’s attorney made arrangements for Arias to be arrested by U.S. Immigration and Customs Enforcement when he appeared for his deposition. Consequently, Arias settled the case before his deposition for fear of being deported. The attorney admittedly used this particular tactic on several occasions, always checking a plaintiff’s immigration status in employment cases.

Employee sued employer and its attorney for retaliation

After settling the initial case and avoiding deportation, Arias filed a second suit against his employer, as well as its attorney, for FLSA retaliation. At the outset, this retaliation claim against the attorney was dismissed by the federal district court based on the fact that the attorney was not the employer. However, the Ninth Circuit disagreed with dismissing the claim.

How can an attorney be liable for retaliation under the FLSA?

The Ninth Circuit reversed the dismissal based on the clear language of the statute. While it is true that the minimum wage and overtime provisions of the FLSA apply to “employers,” the retaliation provision specifically says 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.” (Emphasis added) Furthermore, the definition of “person” under the FLSA includes a “legal representative.”

Considering the relevant definitions which establish that an attorney (as a legal representative) is considered a person, and the retaliation provision applies to a person, not just an employer, it is understandable that the Ninth Circuit reinstated this retaliation claim against the employer’s attorney.

If you feel you have been the victim of discrimination or retaliation in the workplace, or if you have any other questions regarding your employment rights, please contact the experienced employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 265-1880. We are here to serve you!

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