Nobody likes lawyers. We hear that frequently and with good reason. Although we are very proud of the legal work we do, even we know that many lawyers are unethical. Our profession seems to attract more than its fair share of arrogance and mean spirited behaviors. Anyone who has tried to sue their mortgage company or bank can probably relate. Well, today, there is some good news to report!
The 9th Circuit of Appeals has just ruled that workers denied overtime and proper pay can sue not only their employer but sometimes, the company’s lawyers as well. Doubtless, the US Chamber and bar associations across the land will try to legislatively reverse that ruling. But for today, the “working Joe’s” are receiving some well-deserved justice.
Farm workers have a tough time getting paid fair wages. Many travel from state to state chasing the next crop. Big farm operations know this and often intentionally underpay. The risk they face from a migrant worker is slim.
If the migrant worker is undocumented, the odds of the company having to pay any claims goes down even more.
In passing the Fair Labor Standards Act (FLSA), Congress knew that retaliation would be a problem. Ditto for the David vs. Goliath nature of agricultural workers taking on big agri-businesses.
The FLSA was passed during the Great Depression. Workers back then were forced to put up with slave wages simply to have a job. Congress knew it had to put teeth in the law to help level the playing field. Those teeth include mandatory attorney’s fees and anti-retaliation provisions.
One of the strongest provisions in the FLSA is an anti-retaliation clause. As drafted, the FLSA prevents “any person” from retaliating against a worker who claims he or she is being paid below minimum wages or denied overtime wages. Workers who face retaliation can collect damages, double wages and legal fees.
Today we know that the anti-retaliation provision extends to an employer’s lawyers.
Arias v. Raimondo – Workers Fight Back
In 1995, José Arnulfo Arias was hired as a milker by the Angelos Diary in California. Arias was not documented, although the diary company never checked. Instead of using the I-9 employment verification process as intended, Angelos Diary used the program to keep workers in line. It was used as a weapon, keep quite or face deportation.
Arias says that when he was offered a better job in 1997, one of the diary’s managers threatened to expose Arias’ immigration status. Fearful of being exposed, Arias turned down the other job.
In 2006, Arias had enough. He filed a claim under California’s state equivalent to the Fair Labor Standards Act. Among other things, Arias complained he was not paid overtime for the long hours he worked and was denied meal breaks.
By 2011, Arias case looked like it was headed to trial. Just weeks before the trial, Angelos Diary’s attorney sent a notice saying he wanted to take Arias’ deposition. Under both federal and state court rules, a party in a lawsuit can ask witnesses questions under oath before trial.
The deposition notice was sent by Anthony Raimondo, the attorney for the diary. At the same time Raimondo was lining up the deposition, he was also lining up Immigration and Customs Enforcement (“ICE”). According to an email that was later discovered, Raimondo said in an email to ICE, “I hope this helps. [Plaintiff] will be attending a deposition next week. If there is an interest in apprehending him, please let me know so that we can make the necessary arrangements. . . .”
Arias went into hiding and had to be away from his family. Fearing deportation, he settled his case against Angelos Dairy for pennies on the dollar.
Arias Sues the Lawyer for Retaliation!
Arias wasn’t done, however. His next move shocked the legal community. He sued Angelos Diary’s lawyer, Anthony Raimondo!
As the new case against Raimondo unfolded, it became clear that Arias had good reason to be scared. Other farm workers disappeared after Raimondo called authorities. In a 2013 email to ICE, Raimondo said, “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.”
Raimondo asked the court to dismiss the case against him. He claimed that since he was not the employer, he couldn’t be sued for retaliation. Unfortunately, the court agreed.
Arias Appeals (and Wins)
With the help of some legal aid lawyers, Arias appealed. Finally, somebody listened. A three judge federal appeals panel agreed that one must be the worker’s employer for purposes of state and federal overtime laws, but that isn’t the case for retaliation.
The Court said the anti-retaliation law’s “purpose is to enable workers to avail themselves of their statutory rights in court by invoking the legal process designed by Congress to protect them. “[The] “primary purpose of anti retaliation provisions is to maintain unfettered access to statutory remedial mechanism.
“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.”
What the Arias Anti-Retaliation Decision Means for Workers
What does this case mean for workers? The 9th Circuit Court of Appeals decision is now the law of the land in California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. Workers can sue a company’s lawyers for retaliation.
It is too early to see what courts in other states will do. We also don’t know if the defense bar (the lawyers who represent employers) will try to push through a fix through Congress.
If you are in one of the states listed above – and perhaps in every state – you may be able to sue your company’s lawyers for retaliation. It won’t stop companies from underpaying workers but it may slow down the deliberate attempts to keep victims of wage theft from the courts.
MahanyLaw and Wage Theft
We believe that workers are entitled to a fair day’s pay. That means premium overtime pay for most workers who work more than 40 hours per week and minimum wages for all workers. We call it wage theft when a company underpays it workers and we are ready to quickly act when wage theft ocurs!
Most of the wage theft cases we handle involve energy industry workers (oil and gas), healthcare workers and financial services workers (loan officers, bankers). When groups of 50 or more people are affected, however, we will go anywhere in the nation to help workers.
For more information, visit or FLSA unpaid overtime page or call us directly. Attorney Brian Mahany can be reached at or by phone at (direct).
MahanyLaw – America’s Wage Theft Lawyers