Liability for FLSA Retaliation Could be Expanding Beyond Employers

A recent decision by the Ninth Circuit Court of Appeals may not bode well for employers and their representatives. In its decision, the Court interpreted the language of the Fair Labor Standards Act (FLSA) to allow retaliation claims against individuals acting on behalf of an employer. If other courts follow suit, this change would signal a significant expansion in liability for FLSA retaliation claims.

In Arias v. Raimondo, the Ninth Circuit held that an employer’s attorney could be held individually liable for retaliating against an employee who had filed an FLSA claim alleging wage and hour violations. In this case, prior to the trial on the employee’s wage and hour claims, the employer’s attorney contacted U.S. Immigration and Customs Enforcement to have the employee, an undocumented immigrant, taken into custody. When the employee learned of what had happened, he sued the employer’s attorney, alleging that it was in retaliation for his ongoing wage and hour claims. The District Court dismissed the employee’s claim based on the fact that the attorney was not his employer; however, the Circuit Court disagreed and reversed the dismissal. In reaching its decision, the Court focused on the language of Section 15(a)(3) of the FLSA which makes it unlawful for “any person…to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” The Court found that, pursuant to the FLSA, “any person” may include an individual, such as a legal representative, who is “acting directly or indirectly in the interest of an employer in relation to an employee.”

While the facts of this case clearly serve as a cautionary tale to all lawyers representing employers, the decision in Arias may have broader significance, as the Ninth Circuit’s interpretation of the law would expose “any person” to retaliation claims under the FLSA. While employers and the attorneys representing them are often well versed in the perils of retaliating against employees, many individuals who may act on behalf of an employer are not aware of the laws regarding retaliation.

Furthermore, although the Ninth Circuit did not attempt to define the limits of this potential new liability, this decision raises the question of exactly what actions may give rise to a retaliation claim – potentially even creating liability for actions taken as a legitimate response to litigation or other claims. As the Ninth Circuit’s decision may prompt more FLSA claims against individuals, further clarification may soon be forthcoming. We will continue to monitor any developments regarding this issue and provide you with updates as they become available.

Contact info: Meredith S. Campbell Chair, Employment and Labor Group, Shulman Rogers mcampbell@shulmanrogers.com | T 301.255.0550 | F 301.230.2891

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