the supreme court in stenberg the card heard five thirty u s nine fourteen at nine forty two stated that when a statute includes an explicit definition we must follow that definition even if it varies from the terms ordinary meaning throughout the act one of those was the employer it defined employers any person acting directly or indirectly in the interest of the employer and congress went one step further in defining the person acting directly or indirectly in the interest of an employer in relation to an employee that is correct that that additional language doesn't matter for work for purposes of this  case it does not in this case there is no dispute that there was an employee employer relationship between the restaurant in this case and the plaintiffs in this case we're talking about here is whether outside counsel in is defined by congress as an individual partnership association corporation business trust legal representative or any organized group of persons and so they but it doesn't say employers any person has some that the law firm filed a counterclaim against some other not against the employees against some entity i forget the name so you can you  restrictive language is met so it wasn't just an at the outside counsel filed a counterclaim they filed a procedurally unsound and frivolous against him against the employees and against the employees counsel and  arguing here is that the fact that the counsel filed a frivolous lawsuit and procedurally unsound against the employees and against their counsel that was retaliation because section two sixteen to fifteen a three state that it should be a lawful for any person to discharge or in any manner discriminate against an employee because such employee has filed any complaint i don't see  newspaper and an editor correct i'm not seeing that it's also against the employee file that they did they did file a counterclaim against the employee if they did file a claim against the employees as well i believe that that should be in the record but they did also then bring a third party practice third party complaint against the employees council and it's you i guess that is correct yes ok and so i know that the court in the lower court relied heavily on the fourth circuit decision in don't injure but the fourth circuit's decision in indel injuring the question that was presented in the court stated this in their decision that whether an applicant that the question was whether an applicant for employment is an employee authorized to sue and obtain relief for retaliation under two sixteen b and the court did answer that question they held it only employees can sue their current and former employers for retaliation under the and then applicant is not an employee now yes the court did go further and attempt to decipher what what the court congress meant by two sixteen b s edict that any employer can be sued but it did not have the facts necessary to make a determination as to whether a third party could be held liable under the act the ninth circuit's decision in arias i believe is more persuasive and more on point given that in that case the ninth circuit was evaluating the an outside legal counsel who went beyond the scope of his representation and attempted to have plaintiffs who were suing their employer his client detained and deported in effect to get rid of the claim and indirectly assist his client resolving his claims that's what we're saying was done in this case that outside of the will counsel in this case filed a procedurally unsound and frivolous claim against not just the employees but the employees counsel in order to deter intimidate or harass the employees to withdraw their claims and we believe again that looking strictly at the language and the definitions of employer and person under the fair labor standards act provides well i mean if we look beyond just the employer definition order to go forward with a claim here you have to show that the law firm discriminated  against an employee correct i mean you have a two fifteen a three claim here yes that is correct so and that's two it says it's unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint i mean discriminate would seem to me to be a word that has baked into it in degree of intent and intent to to punish or  disfavor somebody based on some criteria on which is illegitimate yes and i can understand how you would think that the employer like the real employer the one that pays the wages here ordinary sense employee let's call go with that  why they discriminated but you know the law firm presumably is just just taking direction from the client and so why is there any evidence that the firm had some independent discriminatory intent against your client there was no discovery there was permitted this was a trial b six motion as you allege that the firm i forget i don't think i have the complaint front of me yes it was alleged that there was the intent to discriminate and to intimidate or was it alleged in a way that kind of gets you beyond twamley i e can't just sort of recite the elements you have to give some facts that make those that recitation plausible well what we said your honor was that this wasn't just a simple they were tortious interference with a business relationship and that was based on the fact that somehow the article that was written in the quotes that were given by the by the employees and council affected or breach the agreement that interfered with the business relationship with prospective customers injurious falsehood was the second claim and it was basically because the employees claim the boys in the attorney stated in in the article that they were not paid the right amount in those those are the words directly from the complaint defamation they said that in defamation claim they failed to specify what the defamatory statements were which is decline to exercise supplemental jurisdiction and issued this decision based on the toby six motion ok so we're talking about claims in this case where were these third party claims filed they were filed so response to the underlying wage claim you brought another action in front of judge yagur saying what they just did this other case violates the f l i say that is correct are us keeping a busy i'm trying to good morning you please assignable court my name is matthew thomas or represent mr long core in his practice i want to go back to i think the question that was asked at the very beginning regarding whether or not the definition of employer and person and what is retaliation under under the f l us a and what it all means i think the court was exactly right it is not in a vacuum it specifically indicates that an employer is any person acting directly or indirectly in the interest of an employee of an employer which isn't within the confines of the employer employee relationship that's the whole statutory scheme for what is known as the fair labor standards act way of if a person is acting indirectly in the interest of an employer can't that include somebody who is an agent of the employer i don't believe it does judge unless you get to the what what every other other than the areas court has done and looks at the operational control of the economic realities and i'll tell you what the if i could pose a hypothetical to the court normally those are opposed to me but i'm going to try to do my best if an employee brings a wage claim under the f l s a ensues their employer and the employer gets word with during the litigation or fines that there is maybe is an action for conversion or an investment in brings  claim against that employee in a bank employee is sought out to author an affidavit in support of the even indirectly in support of the employer does that now put under the strained reading that the opponents propose that bank employee potentially liable for a retail the ation claim under the f l s a you know it sounds a little farfetched but that's exactly what we have here when you look  at the two or three d section two or three d when you're defining employer it again talks within the confines of the employee employer relationship the whole stated purpose of the act according congress is sooner to offer stanch torrie protection to employees from unfair unfair labor practices from employers not from anybody but from employers i mean it's defined so it can't just go off in this sort of like oh no purpose notions or ordinary usage it's defined it's defined broadly and it is yet what i'm really interested in hearing your textual explanation as to how the firm in this case is not an employer well at some point you presentation and i will get to that right now your honor the reason he is not an employer is because every circuit in this country again save the ninth circuit with the areas decision has indicated that an employer must have for purposes of this in order to be liable under the f l s say and be subject to its restrictions in standards you have to have some operational control and they look at the ad but that has nothing to do with the texas statute which is what i'm focused on you know rather model own understood i i understand there's this other economic interest thing but i you know at some point i'm just telling you i would like to hear an explanation of these words not case law from other search and i think the reason we got to that case law is because it is broadly well let's just go let's just strip away all the pain and go down to the bare metal text and tell me why the words mean what the the provision to discriminate as a result of somebody exercising their rights under the f l s a however this section does not give or give an employee the ability to file a private cause of action you have to go to section two sixteen to sixteen be specifically and what the court be as a boy what the court may know is under two sixteen be there are several provisions and they talk in terms of a person it's unlawful for any person any any person may be liable except for be be talks in terms of private cause of action brought under wage the hour restrictions set forth and i believe till six in two zero seven or under two fifteen a three of the retaliation provisions mean only be brought against an employer and i think that distinction is important because in opponent's brief he talks about how you know pelleas talk of all about these you know economic realities and operational control that makes no sense and it's illogical in this context if that's the route we're taking then you can have the first sentence of two sixteen b talk about an employer an employer me sue it's employer for wage an hour violations and then and that means an employer but the second say it's talks about an employee may only sue their employer for retaliation but that means anybody that means any person under the broad definitions that are contained in here you have to look at it as a whole you have to look at it in terms of what the statutory scheme as adele injured court said this does not take place in a vacuum the f l s a does not exist in a vacuum it is to control employer employee relationships your honor what part of the language of two or three deeds not met is it or a person are they i don't believe  acting let's say they are ok let's say the law firms a person is defined so much are they acting directly or indirectly in the interest of an employer and not in relation to the employee because he was retained in this case as counsel to defend them in an f l s a claim that is not talking about filing a counter i understand but that's his involvement in this case is from a litigation standpoint he's not involved in the employer employee relationship which is what i believe is meant by the statute when it talks about in terms of in relation to the employee this is after the fact the f l s say they filed their lawsuit then my  gets involved my client gets involved not he's not involved in the employer employee relationship and that's what i think it means when you good an employee he did as part of the litigation process there was a decision made to pursue a counter claim and acting for the employer with respect to an employee but i've been in navy that's where w were i'm not communicating my position very well judge i believe when it talks in relation to an employee you have to look at the statutory scheme which is the employee employer relationship not in some respect with  not in some litigation context that occurs after the fact so i disagree that when it talks because again dead takes us back to is that bank employee who signs an affidavit is that person then considered an have to we we should be making sense i also want to discuss a couple other issues areas again i've mentioned i think twice i think the not coincide with any other opinion in this case judge on here dismissed areas as being just that that it was not in line with the case law of the other  isn't it that simply the most on point case of all of them i don't think so and i'll tell you why number one the facts in that case i'm sure the court is well aware that it involves an attorney who was deposition of an employee who decided that he was going to call the ice agents to have them the employees picked up and possibly deported as part of his litigation tactic now it's interesting when you actually read the  opinion in areas of the ninth circuit's opinion they talk in terms of that they are extending the f l s a because of the readers nature of this attorneys that that is a completely different scenario than having an attorney who decides after consultation his client decides to file a counterclaim as part of that a geisha and i know counsel mentioned several times that it was unsound and frivolous and all this there was never a finding of and so on in frivolous and it goes to one of my arguments in my briefing regarding whether or not this was even right because at this point i think it is kind of a some sort of abstract disagreement as to whether or not this would count as retaliation because if in fact what that was claimed was true then then they loose however we'll never know because the case the claim was dismissed by judge on her he didn't exercise supplemental jurisdiction it was not refiled in state court and it hasn't been resolved in fact the underlying case has been resolved broad definitions of person and employer in jive it with and they talk about two fifteen in two sixteen in the specific use of yeah it might be unlawful for anybody to retaliate but that doesn't mean there's a private clause of action in the private cause of action is against the employer not anybody in the briefing there was very little given to the issue of what i call the public policy the chilling facts in all of this i do think it's notable in this case you know what is being advocated by the opponent in this case is that an independently outside retain not general counsel should be on the hook or be held liable or could be found liable for retaliation claim under the federal or the federal act the fellow say if that happens any attorney who offers this service of a statutory interpretation question here but i think it i think it does because the policy judge and i think that is what does that have to do with interpret this act because i because it goes to again we should be looking at things in common sense and i know that sometimes get what gets lost in the law and i and i'm i'm a big believer and there's other people there's that here's the thing read what it says but doesn't make sense within the confines of the statute and i think within the confines of statute the employer employee relationship is what is it issue and it's not some outside counsel and but but if if if the court would just give me a little bit of leeway to talk about employer calls up you know john doe down the street lawyer john doe who does a little bit of corporate work and says hey so i just got this you know internal complaint what do you think i should do well you know i've looked at everything and i don't think you have anything to worry about it just deny the claim but there is now potentially on the hook for retaliation claim if the employer takes action because i it starts impugning our ability to represent our clients to use can give candid advice as we're professionally obligated to do to give zealous representation and here's the thing in judge where you hit it right on the head if there is a problem if it is in fact frivolous like council so that's what we have the federal rules for you know there's a there's a sanction my guy could be sanctioned if it was found to be frivolous you know we never got there we never had received a request for sanctions and that's attorney fees that's the cost but that would never happen in this case because we don't know leslie and i will leave you with this because i think it is brief but again sued for defamation for what i say to a jury during closing argument this happened within the confines of a judicial proceeding it was relevant it was pertinent to the to the action it wasn't something that was outside of court my client should not have to worry about being sued for what he's doing if he thinks what he's doing is relevant and pertinent and being a good lawyer for his client i think that attorney who talks to juries i don't feel like i should have to worry about getting sued if i'm going to get sued i mean it sued by my client so i did a bad job you know i'm not going to get i shouldn't have to worry about getting sued because i'm doing my job if again somebody decides that i wasn't doing my job or i was doing things for improper purpose for harassment to be threatening or otherwise then the judge will will let me know and will sanction me accordingly unless the court has any other questions i think i'm also thank just a few points i think it was poignant when opposing counsel said that it's very professionally obligated to their clients it gives us our representation what we're talking about here is going beyond that just as an aria us which and i want to clarify this only the fourth circuit in the ninth circuit had have have touched on this issue as to whether counsel or third party can be held liable under the fair labor standards  what we're talking about here is the professional and ethical responsibility of an attorney to give non frivolous advice or advice professional advice to their to their client with regard to filing that doesn't give an employee any cause of action for an employer or for a lawyer doing something like that and what i'm concerned about a little bit here i guess is even if we were to say that there is potential liability on the we're saying is that an adverse employment as well as an adverse litigation action but how is that an adverse employment action filing a filing a counter claim against especially frivolous kind of claim against an employee in response to the filing of a wage claim serves to harass and intimidate an individual if they are facing the prospect of a of having to defend against a lawsuit in a wage an hour claim especially a claim that has no basis in law there they're potentially incurring additional fees they're potentially looking at extra liability that they were not looking for in the context of a wage in our case most of these cases are in the context of the case but is it in the context of the well yes because what we're talking about here is that the employee files a wage claim that's the complaint ok that is covered the attorney in this case is acting in is acting in relation to that filing and giving in this case bad advice to their to their client and allowing themselves in the client to that's pretty much of a legal conclusion not a factual one when you are on a twelve six and you're kind of promising all this on your legal conclusion that this was frivolous and well it was procedur unsound your honor and yes we did not reach there was no a decision as to whether it was frivolous or not we didn't get to that stage we also didn't get to do any discovery as to whether there that was the specific content we allege that that was a specific intent but we did not get to that point because this was a twenty six but the third party complaint that was filed under rule fourteen a defending party may as third party plaintiff serve a summons and complaint on a nonparty who is or may be liable to it for all or part of the claim against it in this case they filed claims of torturous interference injuries false a defamation and civil conspiracy against the employees and against the employees counsel and certainly does not meet anything related to the filing with third party complaint that then was amended and a cross claim was filed alleging the very same claims and root federal will of procedure thirteen says a pleading may state as a cross claim any claim by one party against a co party if the claim raises out of the same transaction in occurrence none of those four claims that were filed in retaliation to the filing of the wage claim had anything to do with the underlying wage cla so what we're saying here is that not every counter claim is going to rise to the level of adverse employment action but a frivolous procedurally unsound  and just as an arias the court here should find that when an attorney is acting directly or indirectly in the interest of its employer in the context of a claim brought under the fair labor standards act that they should be held a an attorney is a person too but is the attorney and employer yes an attorney is an employee because an attorney is a person despite what the public may think attorneys are persons and we believe that employer covers any person if you're just doing a statutory analysis you're saying the employer is the attorney is an employer and the and the worker can see employee can sue the employer for retaliation yes and if i may clarify with regard to one last point under two sixteen be opposing counsel mention that the first sentence speaks to the employees it says an employer who violates provisions of the section of this title shall be liable to the employee or employees but then the second sentence which is the one that's printed here talking about the retaliation it says an employer who violates the provisions of this section two fift take the counsel of the a pelleas argument that the first sentence certainly applies to employees because it mentions employees the second sentence specifically discussing the retaliation does not it just says liable for such legal or equitable relief as may be appropriate to affect the purposes of section two fifty eight three of this title ok but if you say that the borders it is an employer will be sued for the winters i mean in the lawyer be sued for the wages no because because the employer was not the one that was responsible for any of the wages were saying here that the employer that the that the attorney was not responsible for anything having to do with the wages were saying that the attorney had direct responsibility for the retaliation and discovered by two sixteen a any person who will feel a violates this provisions the employer direct an employer defined under the statute says any person acting directly or indirectly and any person and person is defined also by the statute to include legal representative it's very broad now it may not be the ordinary meaning of the term employer but that's how congress chose to define it and that's how we believe that the court should interpret it thank you thank you counsel the case of the submitted