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Retaliation Suit Proceeds against Attorney Who Called ICE on FLSA Plaintiff

Retaliation Suit Proceeds against Attorney Who Called ICE on FLSA Plaintiff


A recent decision by the Ninth Circuit has cleared the way for a worker to sue the attorney of his former employer under the anti-retaliation provisions of the Fair Labor Standards Act (“FLSA”).  In an earlier case, the same worker sued the dairy farm that employed him under the FLSA, alleging wage and hour violations.  Following an unsuccessful mediation, the dairy farm’s attorney sent the worker’s personal information—including his driver’s license number—to agents of the U.S. Immigration and Customs Enforcement (“ICE”), the federal agency responsible for finding and deporting unauthorized immigrants.  Via email, the attorney offered to make arrangements for ICE agents to apprehend the worker at his deposition for the FLSA case.  When the worker learned about the attorney’s contact with ICE, he settled the case rather than proceed to trial. In his retaliation case, the worker argued that the attorney, as an agent of the dairy farm, enlisted ICE agents to deport him because he filed an FLSA suit against the farm—conduct he asserts is unlawful retaliation.  The FLSA prohibits “any person” from discriminating against any employee because he has filed any complaint under that law.  The farm’s attorney moved to dismiss the complaint on the basis that the FLSA applies only to the worker’s “employers,” which he was not.  Agreeing with the attorney, the district court dismissed the case.  On appeal, the Ninth Circuit disagreed with the lower court.  It concluded that, unlike its wage and hour rules, the FLSA’s anti-retaliation provisions more broadly apply to “any person,” which the statute defines to include an employer’s legal representative.  The court of appeals also found that the “remedial and humanitarian” purpose of the FLSA reinforced its interpretation.  The district court’s decision was reversed and remanded, to allow the worker to pursue his FLSA retaliation claims against the attorney individually.

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