A recent employment law ruling from the Ninth Circuit Court of Appeals has created quite a bit of buzz among legal observers. In that case, the Ninth Circuit decided that the Fair Labor Standards Act’s prohibitions against retaliation were broad enough to allow a dairy worker to sue his employer’s outside attorney for contacting immigration enforcement and notifying them about the employee’s undocumented status.
The issue erupted after the employee, who was an undocumented worker, sued the employer, a dairy farm, for unpaid overtime wages in violation of the FLSA. Two months before the case was set for trial, the farm’s attorney began emailing an employee at Immigration and Customs Enforcement and made plans to facilitate ICE arresting the employee at his deposition. Allegedly, the worker accepted a settlement of the overtime case because he feared deportation.
After the settlement, the employee launched another action, this time for retaliation. He sued both the farm and the attorney. The employer settled, but the attorney moved for dismissal, arguing that he couldn’t be sued because he wasn’t the man’s employer. The trial court agreed, but the Ninth Circuit reversed. The appeals court concluded that the anti-retaliation language in the FLSA, which says that it is illegal “for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint,” is broader than FLSA wage-and-hour claims language and was broad enough to allow this worker to continue pursuing his case.
The ruling is significant regarding what it says in terms of employees’ rights and range of options if they believe that their employers, or people affiliated with their employers, have taken adverse actions against them as a result of their filing FLSA claims.
Neither the 11th Circuit Court of Appeals nor any of the federal District Courts in Georgia have made any similar rulings in favor of (or opposed to) an employee’s FLSA retaliation action against an employer’s attorney. The 11th Circuit has, however, taken on the issue of individual liability in a FLSA retaliation case, once when the individual defendant was a corporate officer, rather than a lawyer, of the employer, and once when the employees held no corporate offices.
In that case, several delivery driver employees sued their employer for unpaid overtime in violation of Section 207 of the FLSA. After the employees launched the overtime case, the employer began converting its delivery drivers from employees to independent contractors. Although many drivers were offered contracts, the plaintiffs were not. Their employment was terminated and their jobs outsourced.
The drivers then sued for impermissible retaliation against the employer and the CEO of the company. The District Court ruled for the drivers.
The CEO unsuccessfully appealed this ruling. He argued that he could not qualify as an employer under the FLSA, so he couldn’t be liable. The statutory language of the FLSA defines an employee as “any person acting directly or indirectly in the interest of an employer in relation to an employee.” A 1986 ruling by the 11th Circuit had already established that a corporate officer, like a CEO, can be “personally liable as an FLSA employer if he has ‘operational control of a corporation’s covered enterprise,’ which may be involvement in the day-to-day operation of the company or direct supervision of the employee.”
While it might be reasonable to presume that the 11th Circuit would not expand the “any person acting directly or indirectly in the interest of an employer in relation to an employee” language to include, as the Ninth Circuit did, an employer’s outside attorney, that recent case from California nevertheless serves as a useful reminder regarding potential individual liability in FLSA retaliation cases, even including cases in which the employer is a corporate entity. For up-to-date advice and diligent representation regarding your FLSA issues in Georgia, contact the knowledgeable Georgia wage law attorneys at Mays & Kerr. Our attorneys have spent many years representing and assisting both employees and employers in their FLSA and other employment cases.
To speak with one of our lawyers about your case, call 1-877-986-5529.
More blog posts:
Nurse Allegedly Fired for Sleeping on the Job Unable to Show Termination Was Actually FMLA Retaliation, Atlanta Employment Attorneys Blog, June 7, 2017
11th Circuit: Lawyer Who Participated in Former Co-Worker’s Lawsuit Allowed to Pursue Retaliation Case, Atlanta Employment Attorneys Blog, June 21, 2016