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Friday, July 7, 2017

Former Employer's Attorney Can Be Liable For Despicable Retaliation

In a case that has the management-side bar moaning and groaning, the 9th Circuit held that an attorney who set up an ICE deportation sting against a client's former employee could be held personally liable for retaliation. As if it weren't bad enough that this attorney represented an employer that used the employee's immigration status to bully them into staying with the company, then failed to pay wages due, this attorney then had the former employee, a milker for a dairy, deported. Indeed, he bragged that it is his practice to have employees who sue his clients deported:

Here's what the Court said about the facts:

Instead of complying with federal law, the Angelos wielded it as a weapon to confine Arias in their employ. When Arias informed Luis Angelo in 1997 that he had been offered a position with another dairy, Luis “responded that if [Arias] left to work at the other dairy, [Luis] would report the other dairy to federal immigration authorities as an employer of undocumented workers,” which Arias was. This threat caused Arias to forego his other employment opportunity and to remain with the Angelos.
. . .
On June 1, 2011, ten weeks before the state court trial, the Angelos' attorney, Anthony Raimondo, set in motion an underhanded plan to derail Arias's lawsuit. Raimondo's plan involved enlisting the services of U.S. Immigration and Customs Enforcement (“ICE”) to take Arias into custody at a scheduled deposition and then to remove him from the United States. A second part of Raimondo's plan was to block Arias's California Rural Legal Assistance attorney from representing him. This double barrel plan was captured in email messages back and forth between Raimondo, Joe Angelo, and ICE's forensic auditor Kulwinder Brar. Arias quoted these revealing exchanges in his current complaint:
. . .
Plaintiff became aware on June 22, 2011 that Defendant had provided information concerning Plaintiff to the immigration authorities. Fearing that he would be deported and separated from his family, Plaintiff suffered anxiety, mental anguish, and other emotional distress from Defendant's retaliatory action. 
On July 11, 2011, one month before trial, the parties participated in a settlement conference. In lieu of proceeding to trial on the wage and hour claims comprised within the 2006 Lawsuit, Plaintiff entered into a settlement and release of those claims, due in substantial part to the threat of deportation created by Defendant's communications with ICE. 
On information and belief, Defendant RAIMONDO's actions against Plaintiff are reflective of and consistent with his pattern and practice of retaliating against employees who assert their workplace rights. In fact, Defendant RAIMONDO has stated in a declaration filed in a court action that it is his practice to investigate the immigration status of plaintiffs who have brought legal claims against his clients.  
On at least five additional occasions, and consistent with his pattern and practice, Defendant RAIMONDO has contacted ICE with respect to employees who have asserted their workplace rights against employers whom Defendant RAIMONDO has represented, and has offered his assistance to ICE in apprehending those employees.

On May 2, 2013, Defendant RAIMONDO confirmed the above pattern and practice in an email he sent to Thomas Hester of the Office of Inspector General at the Legal Services Corporation, in which he stated, “The time when I have had litigants deported, I have always simply taken action rather than make any threats. The attorneys find out when their clients are already gone.”

Wow. Just wow. Every time I think I've heard the most despicable thing done to an employee possible, I hear something worse.

The Court's findings give me hope in an otherwise dismal landscape for employees:

Congress made it illegal for any person, not just an “employer” as defined under the statute, to retaliate against any employee for reporting conduct “under” or “related to” violations of the federal minimum wage or maximum hour laws, whether or not the employer's conduct does in fact violate those laws. ․ Moreover, “the remedial nature of the statute further warrants an expansive interpretation of its provisions. ․” 
Id. at 857 (second omission in original) (quoting Herman v. RSR Sec. Servs., 172 F.3d 132, 139 (2d Cir. 1999)). 
The FLSA is “remedial and humanitarian in purpose. We are not here dealing with mere chattels or articles of trade but with the rights of those who toil, of those who sacrifice a full measure of their freedom and talents to the use and profit of others ․ Such a statute must not be interpreted or applied in a narrow, grudging manner.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944). 
Accordingly, we conclude that Arias may proceed with this retaliation action against Raimondo under FLSA sections 215(a)(3) and 216(b). Raimondo's behavior as alleged in Arias's complaint manifestly falls within the purview, the purpose, and the plain language of FLSA sections 203(a), 203(d), and 215(a)(3).

I suspect that some federal courts will not view a lawyer's liability under the statute in the same way, but I think this is the correct conclusion. It's one thing to advise a client on whether a client can take a particular action. That should be protected by attorney-client privilege. But once the attorney crosses the line and personally takes retaliatory action, then they should be liable.

I think, at least here in Florida, the Florida Bar would look askance at any lawyer who set up a deportation sting at a deposition or mediation, but I have no idea how other Bars would look at it. Two Florida lawyers who set up an opposing counsel for a DUI sting were disbarred last year.

And this brings me to a pet peeve about employment law. Most management-side attorneys act like professionals. It's a job like any other, not to be taken personally. Some, on the other hand, consider law to be a blood sport and try to destroy the litigant (and sometimes the litigant's attorney) with all kinds of nasty out-of-court tactics. An employee suing a client should not be taken as a personal affront (and good luck making money as a defense litigator if nobody sues your clients). A lawyer making vicious attacks against a litigant (other than zealous representation in court) is completely unprofessional, and gives all lawyers a bad name. I hope more courts and Bars crack down on this kind of behavior.

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