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Ninth Circuit Holds Attorney Could Be Liable For Reporting Undocumented Employees

The Ninth Circuit has proven to be a thorn on President Trump's side since he took office, blocking President Trump's original order banning immigration from seven Muslim-majority countries and the revised ban released in March 2017.  And in April, a district court judge in the Ninth Circuit blocked Trump's order cutting funding to sanctuary cities.  Trump has responded by threatening to break up the Ninth Circuit (though the president does not have the unilateral power to change federal courts).

In yet another blow to Trump's agenda, on June 22, 2017, the Ninth Circuit issued a ruling in favor of a group that Trump has targeted since the early days of his campaign: undocumented immigrants.  In Arias v. Raimondo, the court held that an attorney who reported his client's employee to immigration authorities could be liable under the anti-retaliation provision of the Fair Labor Standards Act ("FLSA") because the provision applies to "any person," not just to employers.

The employee, Jose Arnulfo Arias, had filed a lawsuit for various workplace violations against his employer, Angelo Dairy.  Ten weeks before trial, Angelo Dairy's attorney, Anthony Raimondo, contacted U.S. Immigration and Customs Enforcement ("ICE") to inform them that Arias was undocumented and to encourage them to take Arias into custody at a scheduled deposition and remove him from the United States.  Raimondo regularly employed this tactic--he has contacted ICE on at least five separate occasions to inform them that workers who filed lawsuits against his clients were undocumented and to offer his assistance in apprehending those employees.  Arias learned that Raimondo had provided this information to immigration authorities and suffered extreme anxiety as a result.  In July 2011, given the looming threat of deportation, Arias agreed to settle rather than proceeding to trial.

On May 8, 2013, Arias filed a lawsuit against Raimondo in the Eastern District of California, alleging that Raimondo retaliated against him for filing his original case against Angelo Dairy, in violation of section 215(a)(3) of the FLSA.  Raimondo's sole defense was that he could not be held liable under this provision because he was never Arias's actual employer.  The Ninth Circuit drew a key distinction between the FLSA's substantive economic provisions and its retaliation provision.  While the former must necessarily place liability for wage and hour violations on the employer--the entity that controls substantive wage and hours issues--the purpose of the retaliation provision is to ensure that workers can avail themselves of their statutory rights in court.  The court noted that this purpose was "not served by importing an 'economic control' or 'economic realities' test as a line of demarcation into the issue of who may be held liable," and that Congress recognized this distinction in the FLSA, which prohibits "any person"--not just an employer--from engaging in retaliatory conduct.  Thus, the court held that Raimondo could be liable for retaliation, but limited its holding to retaliation claims and stated that this would not make non-employers like Raimondo liable for substantive FLSA wage and hour violations.

We are hopeful that the Ninth Circuit will continue to uphold the rights of undocumented workers and other vulnerable groups targeted by the Trump administration.

The full opinion can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/22/15-16120.pdf

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