An employee may sue his employer’s outside counsel for conspiring with Immigration & Customs Enforcement to have him deported as an unregistered alien in retaliation for his having filed suit against the employer alleging a violation of the Fair Labor Standards Act. The Fair Labor Standards Act’s anti-retaliation section 29 USC 215(a)(3) makes it illegal for “any person” to discharge or in any other manner discriminate against a worker for filing an FLSA complaint. The act also defines “person” to include “legal representative” and “employer” to include anyone who acts directly or indirectly in the employer’s interest with respect to an employee. This case holds that the employer’s attorney is a “person” prohibited from retaliating against an employee for filing an FLSA suit against the employer. Thus, an employee may sue the employer’s attorney for conspiring with ICE to have him deported as an unregistered alien in retaliation for his having filed an FLSA suit against the employer. While the FLSA’s wage and hour regulations apply only to the employer or those acting in an economic capacity similar to an employer, the FLSA’s anti-retaliation provision intentionally casts a much broader net, applying to any person, whether or not functionally the employer.
Ninth Circuit Court of Appeals (Trott, J.); June 22, 2017; 2017 WL 2676771