It’s a simple fact, albeit a pretty obvious one: No one likes to be sued. Whether a lawsuit has merit or is baseless, getting sued typically raises a whole host of emotions, not the least of which are anger and frustration. Not surprisingly, people on the receiving end of a lawsuit typically not only want to defend themselves, but also fight back… and fight back hard. And in many cases, they have the right to fight back.

There are, however, limits as to how one may legitimately fight back within the confines of a lawsuit, particularly those brought pursuant to the wage and hour laws, or the human rights laws. For example, the defendant(s) may think, or maybe even know, that the plaintiff is in this country illegally, and may want to report him or her to the authorities (or have their attorney or another third party do so). As tempting as this tactic may be, it’s something you should never do, and never ask your attorney or anyone else acting on your behalf to do. That’s because it can be considered retaliation, and can get you into even more legal trouble than the underlying lawsuit, as a recent decision by the United States Court of Appeals for the Ninth Circuit illustrates.

In Arias v. Raimondo, the plaintiff Jose Arnulfo Arias worked for a California dairy as a farmhand. The dairy knew Arias was not in the U.S. legally, and for years its owners used the threat of reporting him to keep him from leaving, and from asserting his workplace rights under various laws. Arias eventually grew tired of the poor conditions he toiled under, and in particular, the dairy owners’ failure to pay him overtime and provide legally required rest and meal breaks. He quit, enlisted the help of a legal services agency, and brought a lawsuit in California state court seeking to vindicate his rights. Enter the dairy’s attorney, Anthony Raimondo. Informed by his clients that Arias was an undocumented alien, Raimondo repeatedly contacted the U.S. Immigration and Customs Enforcement Agency (ICE) to provide information about Arias, and even suggested a “meet and greet” with ICE at a deposition Arias was scheduled to give in his case several weeks before the trial was to start. After Arias learned of the fact that he was on ICE’s radar, he quickly settled his lawsuit with the dairy. Pretty slick lawyering, huh?

Not really. In fact, it’s pretty foolish lawyering. After settling his state court’s wage and hour lawsuit, Arias brought a retaliation lawsuit in Federal Court against the employer and the employer’s attorney, claiming that by reporting him to the Feds, they retaliated against him for asserting his rights under the wage and hour laws. It’s important to keep in mind that in addition to laws that protect against wage violations, discrimination and other unlawful conduct, there are also laws that prohibit an employer from taking retaliatory action in response to an employee having asserted his legal rights. You can’t, for example, fire an employee for having filed a complaint claiming that he wasn’t properly paid overtime. As this case shows, you can’t report a complaining employee to ICE and seek to have them deported either.

While retaliation claims are nothing unique, retaliation claims against attorneys for wrongs they have committed on their clients’ behalf are quite uncommon. In any event, faced with this second lawsuit the employer consulted with new counsel and quickly settled with Arias.

The attorney on the other hand moved to dismiss the case, arguing that under Federal Law a retaliation claim may only be brought against an employer, and that he was not Arias’s employer. Although the District Court agreed and dismissed the lawsuit, on appeal, the Court of Appeals reversed. It noted that the anti-retaliation statute in question provides that it is unlawful “for any person… to discharge or in any other manner discriminate against any employee because such employee has filed any complaint … under or related to this chapter.” The statute further provides that employees may sue an “employer” who engages in retaliation. The Appeals Court determined the following: that the attorney qualified as a “person” within the meaning of the statute because the statute defines “person” as including a “legal representative,” and he also qualified as an “employer” because the statute defines “employer” as including “any person acting directly or indirectly in the interest of an employer in relation to an employee.”

Thus, the Appeals Court reasoned that, although Arias never worked for Raimondo, due to the fact that Raimondo was a “person” who had “acted… in the interest of an employer” by doing the dairy’s dirty work vis-à-vis ICE, he was just as much Arias’ “employer” as the dairy, within the meaning of the statute. Accordingly, the Appellate Court found Raimondo could be held responsible for the retaliatory conduct and resulting damages claimed by Arias, and remanded the case back to the District Court for further proceedings.

This interesting case underscores that while you have the right to “fight back” in response to a lawsuit, you should never take action against a claimant or plaintiff that a court or administrative agency might view as retaliatory. Likewise, you should never have someone else take such action on your behalf. While there’s no arguing that revenge is sweet, anti-retaliation laws ensure that if you or your proxy engage in retaliatory conduct in response to a wage or discrimination claim, even a meritless one, the end result will be a bitter and costly one for you, and your company.

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Article by Roberta C. Pike

Roberta C. Pike is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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