Retaliation Is Still Illegal – When Attorney Acts for Employer

Federal and California law guarantee minimum wage and overtime pay, and prohibit retaliation against an employee who complains about a perceived violation of those laws. In California law, unlawful retaliation includes reporting or threatening to report any worker to U.S. Immigration and Customs Enforcement (ICE) to discourage or derail a wage claim.

Yet, with the rising tide of whistleblower retaliation suits against employers over the past decade, it’s a wonder that many businesses still haven’t been deterred. The June, 2017 decision in Arias v. Raimondo (U.S. 9^th Circuit Court of Appeals) illustrates the prevailing judicial “zero tolerance” toward such ill-considered management attempts at retribution.

After some 11 years of Angelo Dairy employment, Jose Arias, an undocumented alien, brought a 2006 suit alleging unpaid overtime and meal and rest break violations among others. As the trial date neared in that case, the employer’s attorney, Anthony Raimondo, instigated a plan to have ICE arrest Arias at his deposition and deport him.

After settling and dismissing his wage suit out of fear of being removed from the U.S., Arias sued Raimondo and Angelo Dairy for retaliation.

The 9^th Circuit panel found both attorney and his employer-client liable, observing retaliation law prohibits not only an employer, but “any person” from discharging or in some other manner discriminating against an employee because that person filed a complaint or engaged in other protected activity. The law defines “person” as “an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons.” See 29 U.S.C. 203(a). Mr. Raimondo could thus be held personally responsible for the retaliatory actions alleged.

Lesson: businesses may not retaliate, whether directly or through a third party (here, an attorney) against any employee because he or she complains of workplace conditions. In California at least, this includes threatening to report or reporting anyone to ICE or other law enforcement over alleged or actual undocumented worker status.

See also:

• The State of Workplace Retaliation and Harassment Claims (July, 2017)
• Workplace Retaliation on the Rise (February, 2017)
• Unlawful Retaliation Defined (September, 2016)
• California Law Protects Undocumented Employees from Workplace Discrimination (April, 2015)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin

September 22, 2017