Calling ICE about Your Plaintiff Could Make You the DefendantAn attorney representing his employer-client calls Immigration and Customs Enforcement (ICE) to inquire about the plaintiff’s immigration status. Is that potentially retaliation under the employment laws? If it is, can the attorney be sued personally for it? According to the Ninth Circuit, the answer is yes on both counts, and the Supreme Court may have the final say on such a scenario.

 

For those of you who are tempted to stop reading because you aren’t a lawyer (and may not care if your lawyer can be sued)—not so fast. If a non-employer can be sued personally for retaliation, this could have broad application to HR professionals, accountants, private investigators, or other consultants.

Background

Jose Arias sued his former employer, Angelo Dairy, for violation of wage-and-hour laws under the California Labor Code. Dairy hired an attorney, Anthony Raimondo, to defend the case. In 2011 as the trial date approached, Raimondo contacted ICE to see about Arias’s immigration status (which apparently was potentially problematic for Arias). This led to Raimondo having multiple communications with ICE about potentially taking Arias into custody. Additionally, it led to disqualification of Arias’ legal counsel, the California Rural Legal Assistance group, which was barred by statute from representing undocumented aliens. A month before trial, Arias agreed to settle the case “due in substantial part to the threat of deportation created by [Raimondo’s] communications with ICE.” Raimondo had apparently contacted ICE on previous occasions related to other employees who asserted workplace rights against his clients.

After settling his wage and hour suit, Arias then filed a retaliation case against Dairy, as well as Raimondo personally. Arias alleged that Raimondo’s call to ICE was retaliation under the FLSA and intentional infliction of emotional distress.

District Court: The Attorney Is Not an Employer and Cannot Be Sued

The preliminary issue was whether Arias could sue Raimondo for FLSA retaliation when Raimondo was not Arias’ employer. The FLSA’s anti-retaliation statute makes it unlawful for “any person” to “discharge or in any other manner discriminate against any employee because such employee has . . . instituted any proceeding under” the FLSA. The Act defines “employer” to include “any person acting directly or indirectly in the interest of an employer in relation to an employee…”

Arias settled and dismissed his retaliation claims against Dairy, but not against Raimondo personally. The District Court dismissed Arias’ complaint against Raimondo, finding that an aggrieved employee can only sue his or her employer under the FLSA and that the FLSA’s provisions referred to an employer-employee relationship. The District Court found that Raimondo never acted “directly or indirectly in the interest of the employer” in employment matters. In coming to this conclusion, the District Court considered “the total employment situation and economic realities of the work relationship.” Arias appealed, and the Ninth Circuit reversed.

Ninth Circuit: The FLSA’s Anti-Retaliation Section Is Broader than Just the Employer-Employee Relationship

On appeal, the Ninth Circuit reversed, explaining that the FLSA provisions for wage-and-hour violations and retaliation claims “are as different as chalk is from cheese.” While the employer umbrella for wage-and-hour claims looks to the economic realities test, when a plaintiff alleges a retaliation claim it “is a different animal altogether.” As the court expressed:

This distinctive purpose [of the anti-retaliation provision] is not served by importing an “economic control” or an “economic realities” test as a line of demarcation into the issue of who may be held liable for retaliation. To the contrary, the FLSA itself recognizes this sensible distinction…. by prohibiting “any person”—not just an actual employer—from engaging in retaliatory conduct.  By contrast, the FLSA’s primary wage and hour obligations are unambiguously imposed only on an employee’s de facto “employer,” as that term is defined in the statute. Treating “any person” who was not a worker’s actual employer as primarily responsible for wage and hour violations would be nonsensical.

The appellate court also seemed disturbed by Raimondo’s “underhanded plan to derail Arias’ lawsuit” and history of reporting employee-claimants to ICE.

Attorney Asks the Supreme Court to Decide

Raimondo did not take kindly to the Ninth’s Circuit’s opinion, and on October 31, 2017, filed a petition for a writ of certiorari, essentially asking the U.S. Supreme Court to hear the case.  Raimondo contended that the Ninth Circuit’s conclusion flouted prior precedent on the FLSA’s definition of employer. The petition noted that the majority of circuits use the economic realities test to determine who is an employer, and do not differentiate between a wage-and-hour versus a retaliation-based claim.

Stay Tuned

If the Ninth Circuit opinion stands, it could have far-reaching consequences for the relationships among employers, their attorneys, and others who could be dissuaded from representing employers or from pursuing certain strategies where they could become potential defendants in FLSA retaliation cases. As Raimondo’s petition tries to illustrate, not just attorneys, but also accountants, HR personnel, and even a gardener, could become defendants for playing some role in an adverse action if ICE has been contacted. An attorney may have legitimate, non-retaliatory reasons for asking ICE about an immigration status, but the ruling may chill attorneys from representing employers and hamper employers’ efforts to secure counsel. We will see if the Supreme Court makes a final determination on this significant issue, but the Ninth Circuit’s decision creates the platform for an individual (attorney or otherwise) who is not the employer and does not control the employer to be sued for retaliation under the FLSA.

The Case of the Breastfeeding Narc: 11th Circuit Confirms Lactating Employee is Covered Under Pregnancy Discrimination ActDoes an employee’s protection under the Pregnancy Discrimination Act (PDA) stop when the employee ceases to be pregnant?  The 11th Circuit Court of Appeals was confronted with this question in Stephanie Hicks v. City of Tuscaloosa, in which Ms. Hicks, a police officer who returned from maternity leave and unsuccessfully sought some accommodation related to breastfeeding. The police department said the requested accommodation was not required and she ultimately left her job, alleging she had been constructively discharged. The 11th Circuit stated that a “plain reading” of the PDA showed that breastfeeding is covered and affirmed the jury verdict in Hicks’ favor.

Factual Background

Stephanie Hicks was an investigator on the narcotics task force of the Tuscaloosa Police Department. After she became pregnant, her supervisor allowed her to work on pharmaceutical fraud cases so she could be off on nights and weekends. Before she left for her FMLA pregnancy leave, Hicks received exceptional performance reviews. However, on her first day back at work after her leave, she was written up. She submitted that some of her superior officers negatively commented on the length of her FMLA leave. The City claimed that Hicks was not willing to meet the demands of a narcotics officer and subsequently transferred her out of that unit and into a patrol unit. The City wrote a letter stating the reasons for her demotion and included an incident where officers came to Hicks’s home to get her police car and she did not come out because she was breastfeeding.

One of the big differences between a narcotics officer and a patrol officer is that a patrol officer must wear a ballistic protective vest all day. Hicks’s doctor wrote a letter to the police chief asking that she be considered for alternative duties because the restrictive ballistic vest could cause breast infections that could lead to problems with breastfeeding. Hicks asked for a desk job so that she would not be required to wear a vest. The Police Department instead only offered her two options:  1) don’t wear a vest; or 2) wear a “specially fitted” vest that left gaping holes. For safety reasons, Hicks did not choose either option and resigned. She sued the City and a jury found in her favor on constructive discharge, pregnancy discrimination, and FMLA interference, awarding her $374,000. The City appealed, arguing that it reassigned Hicks because of her poor performance rather than discrimination.

The Eleventh Circuit’s Take

The 11th Circuit found that Hicks was both discriminated against on the basis of her pregnancy and retaliated against for taking FMLA leave.  Under the PDA, an employer may not discriminate against an employee on the basis of pregnancy, childbirth or “related medical conditions.” The 11th Circuit held that lactation is a related medical condition to pregnancy and therefore, a termination based on a woman’s need to breastfeed violates the PDA. The court went on to make the somewhat obvious statement: “Breastfeeding is a gender-specific condition because it clearly imposes upon women a burden that male employees need not—indeed, could not—suffer.”

However, the court noted, there is an abundance of case law stating that Title VII and the PDA do not mandate that employers  have to provide “special” accommodations to breastfeeding workers. The opinion recognizes that Hicks had a unique case. While the City may not have been required to provide Hicks with special accommodation for breastfeeding, the City’s action in refusing an accommodation offered to other employees compelled her to resign and supported the jury’s verdict. The court went on to cite Young v. United Parcel Service a case that recognized a Title VII claim for a pregnant woman where her employer failed to accommodate her in a lifting restriction, but accommodated other similar non-pregnant employees on worker’s comp. Given these facts, the court upheld the jury verdict.

What Did We Learn?

This decision clearly shows that a breastfeeding employee is still protected under the PDA and employers should take note. While it is not an absolute protection from any supported non-discriminatory adverse employment action, employers should be careful about loose comments about the employee and certainly should engage in an interactive process if approached about a reasonable accommodation. While the 11th Circuit made some blanket statements that breastfeeding employees don’t have to be treated as special, they surely were not ignoring an employer’s obligation under the FLSA that mandates employers to provide reasonable break time for employees to express breast milk for a nursing child for up to one year after the child’s birth. The employer must also provide the lactating employee a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public.

Honesty Is the Best Policy . . . Until It Isn’t – Employer Denied Summary Judgment After Distributing Letter About Former Employee’s Charge of Disability DiscriminationHow much should you tell your employees about a pending charge of discrimination from a former employee? Should you let them know that the EEOC might contact them? Is complete honesty really the best policy? Maybe not, according to a federal district court in Connecticut that found an employer’s oversharing about a charge precluded summary judgment. In EEOC v. Day & Zimmerman NPS, Inc., the EEOC sued DZNPS for interference and retaliation under the ADA after the company distributed a letter to a group of employees disclosing various details about a former employee’s disability discrimination charge.

The Facts and the EEOC’s Lawsuit

In the fall of 2012, DZNPS hired approximately 150 temporary electricians, including Gregory Marsh, to work at a nuclear power station during a shutdown. After Marsh began training, he provided a doctor’s note stating that he could not work around radiation due to his lung disease and requested a reasonable accommodation. DZNPS terminated him.

In October 2012, Marsh filed an EEOC charge, alleging that DZNPS violated the ADA. About 15 months into the investigation, the EEOC requested a list of all electricians at the site during the fall of 2012, including their contact information. Before providing the requested information, in June 2014, DZNPS sent a letter to approximately 146 electricians, identifying Marsh by name, noting he filed an EEOC charge alleging disability discrimination, giving details of his request for accommodation, denying the allegations, and informing them that an EEOC investigator might contact them. The letter specifically stated:

It is your decision whether you wish to speak with the investigator and your decision will not have an adverse impact on your current or future employment with DZNPS. . . . DZNPS also prohibits any form of retaliation against an employee, including those who chose to participate in the EEOC investigation.

If you choose to speak with the EEOC investigator and would like to have a counsel for DZNPS present while you speak to the investigator, please let us know and we will make the necessary arrangements.

The EEOC was not happy about the letter and sued DZNPS under the ADA. The suit alleged that the company’s letter was retaliation against Marsh for filing an EEOC charge. It further alleged that the letter interfered with Marsh’s and the letter recipients’ exercise and enjoyment of rights as protected by the ADA. Despite Marsh’s original allegations, the EEOC did not assert that DZNPS failed to provide a reasonable accommodation, and Marsh apparently did not file his own lawsuit on that claim.

Both the EEOC and the company filed cross motions for summary judgment. The EEOC moved only on the interference claim, while DZNPS moved for judgment as to the entire complaint, arguing that the EEOC lacked standing to bring the claim, its letter was protected under the First Amendment and Connecticut’s litigation privilege, and the EEOC could not make out claims for retaliation or interference under the ADA. To the parties’ dismay, the district court denied both motions and stated that the EEOC’s claims would proceed to trial.

The District Court’s Opinion

The district court rejected DZNPS’s standing, First Amendment, and litigation privilege arguments, in part because DZNPS offered no authority to support them. There are plenty of employment statutes that limit an employer’s speech (e.g., Title VII, NLRA), so the court reasoned that if the letter was found to be retaliatory or interfering with ADA rights, the First Amendment would not prevent such a finding.

The Retaliation Claim. As threshold issues on the retaliation claim, the EEOC had to prove that the company’s letter was an “adverse employment action” against Marsh and that it was causally connected to his charge. Recall that by the time DZNPS sent the letter, Marsh had not been working for them for more than 18 months—so was the letter an adverse action? The district court found that there were disputes of fact, noting that “when an employer disseminates an employee’s administrative charge of discrimination to the employee’s colleagues, a reasonable factfinder could determine that such conduct constitutes an adverse employment action.”

Recall also that there were almost two years between Marsh filing his charge and the letter being distributed to employees, so DZNPS argued that they were not causally connected. On that issue, the court held that a reasonable jury could find a causal connection and that the period between the initial filing of the charge and the alleged adverse action was not the only relevant time frame. Although there was a 20-month gap between the charge and the letter, there was only a three-month gap between the EEOC’s request for information on other electricians and the letter. Furthermore, the letter specifically referred to Marsh’s charge and the EEOC’s investigation and “[was] clearly a response to those things.” Consequently, the court held that the EEOC survived summary judgment on causation.

DZNPS offered a legitimate, non-discriminatory reason for the action—it sent the letter to prevent business disruption and efficiently inform the recipients that DZNPS would be producing their contact information to the EEOC. The court found that a reasonable jury could conclude that the explanation was pretextual (i.e., a lie) and the real reason was a desire to interfere with ADA rights. For example, a jury could determine that the letter did not need (1) to mention Marsh or his claims, (2) to explain that recipients did not need to speak to the EEOC, and (3) to offer a company lawyer’s presence at any interview.

The Interference Claim. The ADA prohibits “interference” by providing that no one can “coerce, intimidate, threaten, or interfere” with someone’s rights under the statute. Noting the dearth of law on this issue, the district court stated that “the disclosure of personal information about an individual could well dissuade that individual from making or supporting a charge of discrimination under the ADA.” The court ultimately held that a reasonable jury could conclude that that the letter could interfere with or intimidate both Marsh and the other electricians with respect to communicating with the EEOC about possible disability discrimination. The company’s motive in sending the letter was deemed irrelevant.

Helpful Dos and Don’ts

So just how honest is too honest when faced with the decision to notify employees that you’ve given the EEOC their contact information? Employers should learn from this tale and err on the side of caution. If you decide to provide notice to employees who may be contacted by the EEOC:

DO let them know the EEOC may contact them.
DO let them know that if they have questions, they are free to contact HR.
DON’T name the employee(s) who filed or are involved in the EEOC charge.
DON’T provide details of the allegations.
DON’T provide advice about what employees should or should not do or say if contacted.
DON’T volunteer the services of your lawyers.

These guidelines are based on this one court’s ruling and, as a result, are probably overly cautious. It is unclear how the court would have ruled if the letter hadn’t provided the information about Marsh and his claims. However, this decision could make the EEOC a little more aggressive when it wants other employees’ contact information and feels that an employer isn’t being forthcoming. If you want to give your employees a heads-up, remember that less is more and only provide sensitive information to necessary employees on a limited, need-to-know basis.