Michael R. Lied

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Lawyers Behaving Badly (Wednesday, July 19, 2017)

It’s a bad idea for lawyers to threaten to call immigration authorities to gain advantage over another party. In 1995, plaintiff Jose Arnulfo Arias went to work as a milker for Angelo Dairy. Three Angelos owned and operated the dairy: Luis, Maria, and Joe (“Angelos”). When the Angelos hired Arias, they did not complete and file a Form I-9 (“I-9”) regarding his employment eligibility in the United States.

Instead of complying with the law, the Angelos used 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.

In 2006, Arias sued Angelo Dairy in California state court for a variety of workplace violations.

On June 1, 2011, ten weeks before the state court trial, the Angelos’ attorney, Anthony Raimondo, set about 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 barreled plan was captured in email messages back and forth between Raimondo, Joe Angelo, and ICE’s forensic auditor.

Arias filed a second lawsuit against Angelo Dairy, the Angelos, and Raimondo in the Eastern District of California. Alias alleged that the defendants violated section 215(a)(3) of the Fair Labor Standards Act.

Arias’s theory was that Raimondo, acting as the Angelos’ agent, retaliated against him in violation of section 215(a)(3) for filing his original case against Raimondo’s clients in state court. Raimondo’s sole defense is that because he was never Arias’s actual employer, he could not be held liable under the FLSA for retaliation against someone who was never his employee.

The district court granted Raimondo’s motion to dismiss, and Arias appealed.

Section 215(a)(3), an anti-retaliation provision, makes it 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 FLSA defines the term “person” to include a “legal representative.”

As the appeals court colorfully noted, controversies under FLSA sections 206 and 207 that require a determination of primary liability for wage and hour responsibilities and violations, on one hand, and controversies arising from retaliation against employees for asserting their legal rights, on the other, are as different as chalk is from cheese. Each category has a different purpose, it stands to reason that the former relies in application on tests involving economic control and economic realities to determine who is an employer, because by definition it is the actual employer who controls substantive wage and hours issues.

The wage and hour provisions focus on de facto employers, but the anti-retaliation provision refers to “any person” who retaliates. 29 U.S.C. § 215(a)(3), In turn, section 203(d) extends this concept to “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Thus, Congress clearly meant to extend section 215(a)(3)’s reach beyond actual employers. Raimondo’s activity illustrated the wisdom of this extension.

In Sapperstein v. Hagur, 188 F.3d 852, 856-57 (7th Cir 1999), the Seventh Circuit interpreted and applied the “any person” distinction in a manner that supported the appeals court’s analysis. The court concluded that section 215(a)(3) provides an “alternative basis for subject matter jurisdiction” where the employer’s gross annual sales amount appeared to fall short of the jurisdictional amount required to bring the employer within the purview of the FLSA’s wage and hour provisions set forth in sections 206 and 207. The court held that:

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.

Accordingly, Arias could proceed with his retaliation action against Raimondo. Raimondo’s behavior as alleged in Arias’ complaint manifestly fell within the purpose and plain language of FLSA sections 203(a) 203(d), and 215(a)(3). The district court was reversed and the case was remanded. Arias v. Raimundo, ___ F.3d ___, 2017 WL 2676771 (9th Cir. 2017).

In a consolidated unfair labor practice and representation case involving allegations that Deep Distributors violated Section 8(a)(1) and (3) during an organizing campaign. Deep Distributors filed objections alleging that certain conduct by the Union warranted setting aside the election, which the Union won by a vote of 9 to 5, with 5 challenged ballots, a potentially determinative number. The administrative law judge found that Deep Distributors violated Section 8(a)(1) of the Act by threatening employees with termination and unspecified reprisals, giving employees the impression their protected activities were under surveillance, interrogating employees, promulgating new work rules in response to Section 7 activity, telling employees it would be futile to select the Union as their collective bargaining representative, and threatening employees with deportation for testifying at the Board hearing. The judge also found that Deep Distributors violated Section 8(a)(3) and (1) of the Act by terminating eight employees for engaging in union and protected concerted activity.

In adopting the judge’s recommendation to overrule Deep Distributors’ election objections, the NLRB agreed with the judge’s determination that the alleged objectionable conduct—a confrontation between the union president and two of Deep Distributors’ agents—would not “reasonably tend to interfere with the employees’ free and uncoerced choice in the election.”

The judge found that Union President Gilberto Mendoza, Deep Distributors’ President, Danny Bindra, and the Deep Distributors’ attorney, Saul D. Zabell, exchanged words and had very brief physical contact when Mendoza attempted to exit the election area in order to verify that Deep Distributors’ video surveillance cameras were shut down before voting began. The Board found that this single interaction would not tend to affect the election results, particularly in the absence of evidence that any employee other than the Union’s own observer was aware of it before voting.

Better call Saul? The record here suggested that during the course of the hearing, Zabell, engaged in a persistent pattern of aggravated misconduct that interfered with the judge’s attempts to conduct the hearing. Zabell’s apparent misconduct included the following unjustified and repeated behavior: bullying and intimidating the Respondent’s witnesses, including making threats to report them to immigration authorities; falsely accusing the Union’s president of threatening Zabell’s safety and referring to him as a “felon”; summoning federal marshals to the courtroom and insisting on a police presence throughout the hearing, accusing the General Counsel of misconduct; and questioning the trial judge’s competence and authority after rulings had been made. The judge put Zabell “on notice that this is an admonishment and a reprimand” on four separate occasions. At one point during the hearing, the judge stated: “Mr. Zabell, I have never seen such misconduct engaged in by an attorney in these proceedings in my 43 years with the Board and 35 years as a judge. It’s all on the record I refer you to Sec 102.177 of the Board’s rules and regulations. You are put on notice that this is an admonishment and a reprimand. Your conduct before me, before we broke for lunch was improper, contemptuous, unprofessional, and constituted misconduct of an aggravated character. It will not be tolerated.”

After reviewing the record, the NLRB concluded that it was appropriate under Section 102.177(d) and (e)(1) of the Board’s Rules to bring the allegations concerning Zabell to the attention of the Investigating Officer for investigation and such disciplinary action as may be appropriate.

Deep Distributors of Greater NY d/b/a The Imperial Sales, Inc., 365 NLRB No. 95 (2017).


· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com
 

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