F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

J O S E A R

N U L F O A R

I A S , Plaintiff-Appellant
,

v.

A N T H O N Y RA I M O N D O , Defendant-Appellee. No. 15-16120

D.C. No. 2:13-cv-00904-TL

N-EF B

OPI NI ON

Appeal from the United States District Court for the Eastern District of California Troy L . Nunley , District J udg e, Presiding

Arg ued and Submitted March 14, 2017 San F rancisco, California

F iled J une 22, 2017

B efore: Stephen S. Trott, Kim McL ane W a rdlaw, and Ronald M. Gould, Circuit J udg es.

O pinion by J udg e TrottA R I A S V

. RA I M O N D O 2

SUMMARY *

Labor Law

The panel reverse d t h e d istrict court’s dismissal o f a retaliation claim under the F air L abor Standards Act.

The plaintiff alleg e d that after he filed suit ag ainst his employ e rs in state court, the employ ers ’ a t torney , acting a s their ag ent, r etaliate d a g ainst him b y planning for U.S. I mmig r a tion a

nd Customs Enforcement to take h im into custody at a scheduled d epos i t i o n and then to remove him from the United Sta t es

. The panel held that unlike the F air L abor Standards Act’s wag e a n d h o ur provisions, its retaliation provisions apply to “a n y p e rson” and do not require that a defendant be the plaintiff’s empl o y e r

. The panel r emanded the case to the district cour t f o r f urther proceeding s.

COUNSEL

Christopher H o (arg

ued) and Stacy Villalobos, The L e g al Aid Society – E mploy

ment L aw Center, San F rancis co, Cal i f o rnia; E smeralda Z endejas and B lanca A. B añuelos, California Rural L eg al Assistance, I nc., Stockton, California; Michael L

. Meuter, California R ural L e g al Assistance, I n c., Salinas, California; for Plaintiff-Appellant.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.A R I A S V

. RA I M O N D O 3

Scott P. Dix ler (argu e d) and Peder K. B atalden, Horvitz & L evy L L P, B urbank, California, for Defendant-Appellee.

Nora A. Preciado and J oshu a T

. Stehlik, National I m mig ration L aw Center, L os Ang eles, California; J ess i c a Hahn, National I mmig ration L aw Center, W ashing ton, D.C.; for Amicus Curiae National I mmig ration L aw Center, A sian American s A dvancing J ustice – Asian L aw Caucus, A sian Americans Advanci n g J ustice – L os Ang eles, B et T zedek L eg al Services, Centro L e g al de la Raz a, F armworker J ustice, J o b s w i th J ustice, N ational Employ ment L aw Project, New Orleans Workers’ Center for Racial J ustice, UCL A Center for L abor Research and Education, United F ood and Commercial W o rkers I nternational Union, and W orksafe I nc.

OP INION

TROTT, Circuit J u d g e:

Can a n employ er’s attorney b e held liable for r etaliating ag ainst his client’s employ e e because the employ ee sued his client for violations of workplace laws? The district court’s answer was no. W e respectfully disag ree.

W e have jur i sdiction over this timely appeal p ursuant to 28 U.S.C. § 1291, and we reverse and remand.

I

Background

I n 1995, p l aintiff J osé Arnulfo Arias went to work a s a milker for A ng elo Dairy

. Three Ang elos owned and operatedA R I A S V

. RA I M O N D O 4

the d airy : L

uis, Maria, and J o e (“Ang elos”). W hen the Ang elos hired Arias, they did not complete and f ile a F orm I

9 (“I -9 ”) r e g arding his employ ment elig ibility in the United States.

An I -9 is a document required b y U.S. Citiz e n s hip a nd I mmig r at i o n Services ( “USCI S”), a component of our Department of Homeland Security

. USCI S ex plai ns the purpose of the I -9 and process as follows:

F orm I -9 is used for verify ing the identity a

nd

e m p l o y m e n t a uthoriz ation o f individua l s h i r e d for employ

ment in the United States. All U.S. employ ers must ensure proper c o m p letion o f F orm I -9 for e ach i n d i vidual they hire for employ ment i n t h e U nited States. This i n cludes citiz e ns and noncitiz ens.

. . . Employ ers must r e tain F orm I -9 for a desig nated period a n d make it available for inspection b y authoriz ed g overnment officers.

U.S. Citiz e nship and I mmig ration Services, I-9, Employment Eligibility Verification
, https://www.uscis.g o v/i-9 ( last updated J an. 23, 2017).

I nstead of comply ing with federal law, the A ng elos wielded i t as a weapon to confine Arias in their e mploy

. W h en Arias informed L u is Ang e lo in 1997 that he had been offered a position with another dairy
, L uis “responded that if [ Arias] left to work at the other dairy
, [ L uis] would report the other dairy to federal immig ration authorities a s an employ er

o f undocumented workers,” which Arias was. T h is thr e at caused Arias to foreg o his other e mploy ment opportunity a

nd to remain with the Ang elos.A R I A S V

. RA I M O N D O 5

I n 2006, Arias sued A n g e lo Dairy in California state court. Arias alleg ed causes of action on behalf of himself a nd other employ e es under California’s Unfair Competition L aw ( “ U CL ”), C AL

. B U S

. & P R O F

. C O D E § 17200 et seq. , f o r a variety of workplace violation s , i n cluding failure to provide

o v e rtime pay and rest and meal periods. L ater, h e a d d ed a

cause of action under California’s Private Attorney s General Act of 2004 (“PAGA”), C A L

. L A B

. C O D E § 2698 et seq. The Superior Court struck his representative claims i n the UCL and PAGA causes o f a ction. T h e Court of Appeal later issued

a peremptory writ of mandate directing the Superior Court to vacate its order as to the PAGA cause of action. See A rias v

. Superior Court
, 63 Cal. Rptr. 3d 272 (Cal. Ct

. App. 2007), aff’d
, 46 Cal. 4th 969 (2009). The Superior Court then set a trial date of Aug

ust 15, 2011.

II

The P lot Thickens

On J une 1, 2011, ten w eeks before the state court trial, the Ang elos’ attorney , Anthony R aimondo, set in motion an underhanded plan to derail A rias’s lawsuit. Raimondo’s p lan involved e nl i s t ing the services of U.S. I mmig ration a nd Customs E nforcement (“I CE”) to take Arias in to custody at

a scheduled deposition a n d then to remove h i m f rom the United States. A second pa r t o f Raimondo’s plan w as to block A rias’s California Rural L eg al Assistance attorney from representing him. This double barrel plan was captured in email messag e s back and forth between Raimondo, J oe Ang elo, and I CE’s forensic auditor Kulwinder B rar. Arias quoted these revealing

ex chang es in his current complaint:A R I A S V

. RA I M O N D O 6

23. On J une 1, 2011, D efendant RAI MONDO

e m a i l e d I m m i g r a t i o n a n d C u s t o m E nforcement (“I CE”) Fo r e n s i c A u d i t o r Kulwinder B rar, an employ ee o f t he U.S. Departmen t of Homeland Security

. I n this email, Defendant RAI MONDO supplied B rar with information about Plaintiff’s identity
, and a sked B rar to “ [ l] et me know i f t here is any thing that y ou can do. . . .”

24. On the same day
, J une 1, 2011, all parties
to the 2006 L awsuit attended a m ediation in Stockton, Califor n i a

. The mediation was unsuccessful.

25. O n J u n e 1 4
, 2 0 1 1
, D e f e n d a n t RAI MONDO sent J oe Ang elo a tex t messag e stating
, “I mmig ration is try ing to verify Arias [ sic] status - le t me know if y ou have any

more info on him.” J oe Ang elo r esponded b y providing Defendant RA I MONDO with Plaintiff’s driver’s license number. . . .

26. O n J u n e 1 5
, 2 0 1 1
, D e f e n d a n t RAI MONDO emailed to I CE Auditor B rar the information J oe Ang elo h ad provi d ed. I n doing so, Defendant RA I M ONDO stated, “I hope this helps. [ Plaintiff] will be attending a deposition nex t week. I f there is an interest in apprehending him, please let me know so that

we can make the n ecessary arrang ements.

. . . ”

27. On J une 16, 2011, I CE Auditor B rar responde d t o D efendant RAI MONDO’s emailA R I A S V

. RA I M O N D O 7

of J une 1, 2011, stating that “[ b ] a s ed on our records he [ Plaintiff] has no leg al status. W e will be forwarding this i n f ormation to ERO [ Enforcement and Remov a l Operations] a nd
y our contact info r m a tion if they want to proceed with this matter. . . .”

28. Defendant RAI MONDO replied to I CE Auditor B rar, asking her to “[ p] lease let ERO know that they can e x pect our full cooperation and assistan c e ”, and to “let me k now if there is any thing I can do to be of a s s i s t a nce to y ou.” B rar responded, “No p r o blem and we will g et y our contac t i nformation as soon a s contact is made.”

Arias’s c urrent complaint also alleg ed th e i m pact o f Raimondo’s actions on him and his case, a nd Raimondo’s pattern and practice of similar conduct in other cases:

29. Plainti f

f became aware o n J une 22, 2011 that D efendant had provided information concerning Plaintiff to the immig ration authorities. F earing that he would be deported and separated from his family
, Plaint i f f suffer ed anx iety
, mental ang uish, and other

e m o t i o n a l d i s t r e s s f

r o m D e f

e n d a n t ’ s retaliatory

action.

30. On J uly 11, 2011, one month before trial, the par t i es participated in a settlement conference. I n lieu o f p roceeding to trial on the wag e and h our claims compri s e d within the 2006 L awsuit, Plaintiff e ntered into aA R I A S V

. RA I M O N D O 8

settlement and r elease o f those claims, due in substantial part to the threat of deportation created by Defendant’s communications with I CE.

31. On information and belief, D efendant RAI MOND O ’ s actions ag ainst Plaintiff a re reflective of a

n d consisten t with his pattern and pra c t ice of retaliating a g ainst employ ees

w h o assert their workplace rig h ts. I n fact, Defendant RAI MONDO h as stated in a declaration filed in a court action that it is his practice to investig ate the immig ration statu s of p l aintiffs who h ave broug ht leg al claims ag ainst his clients. . . .

32. On at least five additional occas i o n s , a nd consistent with his pattern a n d practice, Defendant RAI MONDO h as contacted I CE with respect to employ ees who have asserted their workplace rig hts ag a inst employ ers

w h o m D e f

e n d a n t R A I M O N D O h a s

r epresented, and has o ffered his assistance t o I CE in apprehending

those employ ees. . . .

33. On May 2, 2013, D efendant RAI MONDO confirmed the above pattern and practice in an email he sent to Thomas Hester of the Office of I nspector General at the L eg al Services Corporation, in which he stated, “ The time when I have had litigants deported, I have always s imply taken action rather than make
any threats. The attorneys find out when their clients are already gone. ”A R I A S V

. RA I M O N D O 9

III

Arias’s Com plaint

On May 8, 2013, Arias filed t h i s lawsuit ag a inst Ang elo Dairy
, the Ang elos, and Raimondo in the Eastern District of California. A rias alleg ed that the defendants violated section 215(a)(3) o f the F air L abor Stand a rds Act ( “F L SA”), 29 U.S.C. § 201 et seq. 1

Arias’s theory of his case is that Raimondo, a cting as the Ang elos’ ag e nt, r etaliated a g ainst h im in violation of section 215(a)(3) for filing his orig ina l case a g ainst Raimondo’s clients in state court . Raimondo’s sole leg al defense is that because he was never A rias’s a ctual employ e r , he cannot be held liable under the F L SA for retaliation ag ainst someone who was never his employ ee.
Ang elo Dairy a

n d its o wners settled their part of this case at the early

stag es of its ex istence.

IV

A.

The District Court’s Dism issal

Notwithstanding section 215(a )(3)’s reference to “any person,” section 203(a)’s inclusion o f a leg a l representative

as a “per s o n , ” and section 203(d)’s plain lang uag e d efining “employ er,” the district court g ranted Raimondo’s motion to

1 A rias’ s cu rren t co m

p lain t also co n tain s claim s f o r in ten t io n al in f lictio n o f em o tio n al d istress an d u n f air co m p etitio n

.A R I A S V

. RA I M O N D O 10

dismiss pursuant to F ederal Rule of Civil Procedure 12(b)(6). The court did so without the benefit of oral arg ument, concluding that because Arias “ha[ d] not alleg ed that [ Raimondo] ex ercised any control over [ his] employ m e nt relationship,” Raimondo a s a matter o f law could not be Arias’s employ er.

B.

Standard of

Review

W e review de novo a Rule 12(b)(6) dismissal for failure
to state a claim, and we take all alleg ations of material fact a s true, c onstruing them in t h e lig ht most favorable to the nonmoving party , here Arias.

V

Discussion

Section 2 15(a)(3), a

n anti-retaliation provision, makes it unlawful “for any person

. . . to d i s charg e or in any other

manner discriminate ag ainst any emplo y ee because such employ e e has f

iled any complaint

. . . u nder o r related to this chapter.” The F L SA defines the t e r m “ p e rson” to include a

“ l e ga l representative.” Id. § 203(a). Section 216(b) in turn creates a private rig

ht of action ag a inst any “employ er” w ho violates section 215(a)(3); and the F L SA defines “employ e r” to include “ any person acting d irectly or indirectly in the interest of an employ er in relation to an employ ee

. ” I d

. §§ 203(d), 216(b).

Controversies under F L SA sections 206 and 2 07 t h at require a determination o f primary workplace liability forA R I A S V

. RA I M O N D O 11

wag e and hour responsibilities and v i o l a t i o ns, on one h and, and controversies arising

from retaliation ag ainst employ ees for asserting their leg al rig hts, on the other, are as different a s chalk is from cheese. Each categ ory has a different purpose. I t stands to r eason that the former relies in application on tests involving economic control a nd economic realities to determine who is an e mploy er, because by definition it is the actual employ er who controls substantive w a ge and hours issues.

Retaliation is a different animal altog ether. I ts purpose is
to e n able w orkers to avail themselves of their statutory rig hts in court by

invoking the leg al process desig ned by Cong ress to protect them. Robinson v

. Shell O il Co.
, 519 U.S. 337, 346 (1997) (the “primary purpose of antiretaliation provisions” is
to “[ m] aintai[ n] u nfettered access to statutory remedial mechanisms”).

This distinctive p urpose is n ot served by impor t i ng an “economic control” or an “economic r ealiti es ” test as a line of demarcation into the issue o f who m a y b e h eld liable for retaliation. To the contrary , the FL S A itself recog niz es this sensible distinction in se c t ion 215(a)(3) by prohibiting “any p e r s o n” – not just an actual employ er – from eng ag ing i n retaliatory conduct. B y contrast, the F L SA’s primary w ag e and hour oblig ations are unambig uously imposed only on an employ e e’s de facto “employ er,” as that term is defined in the
statute. Treating “any person” who was not a worker’s actual

e m p l oy er as primarily responsible for wag e and hour violations would be nonsensical.

The d istrict court based its dec ision on p recedent pertaining to whether a person was an employ er for purposes of the F L SA’s substantiv e e c onomic provisions, i.e. , thoseA R I A S V

. RA I M O N D O 12

involving wag es a

nd hours, et c

. , not section 215(a)(3) retaliation. See Bou c h e r v. S haw
, 572 F .3d 1087, 1090–93 (9th Cir. 2009) (holding that an employ er’s i n d i vidual manag ers w ere personall y l iable under the F L SA for unpaid wag es, pursuant to an “ ec o n o mic c o ntrol” test); Bonnette v

. Cal. H ealth & W e lfare A g ency , 704 F .2d 1465, 1470 (9th Cir. 1983) (holding that state a n d county ag encies were employ ers of in-home chore workers who alleg ed violations of m i n i mum wag e provisions).

The district court also r elied on D ellinger v. Science Applications I

nter national Corp.
, 6 49 F .3d 226 ( 4th Cir. 2011). However, Dellinger is inapposite becau s e Delling er

was n ever officially hired by the defendant. All Delling e r stands for is that “the F L SA g ives an employ ee the r igh t to

sue o nly his or her current or f orm e r em p l o y er and that a prospective employ ee cannot sue a prospective employ er for retaliatio n

. ” I

d

. at 227 (emphasis added). I n other words, a p erson who n ever worked for the employ er – in o u r c a s e Ang elo Dairy – does not f it any where in the F L SA. See id. at 230 n.2. B ecause Ang elo Dairy was Arias’s actual employ er, Arias is indisputably an employ ee, a s section 215(a)(3) u ses that term.

These cases a

nd the others the district court r elied on a re not in tension with o u r d ecision. The cases are simply inapposite in the contex t of an alleg a tion of retaliation.

The Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. W hite
, 548 U .S. 53 (2006), supports

our analy sis, albeit in a diffe r e n t contex t: Title VI I of the Civil Rig hts Act o f 1 964’s (“Title VI I ”) anti-retal i a tion provision, 42 U.S.C. § 2000e-3(a). See Darveau v. Detecon, Inc.
, 5 15 F .3d 334, 342 ( 4th Cir. 2 008) (recog niz ing “theA R I A S V

. RA I M O N D O 13

almost u niform practice of courts in considering the authoritative body of Title VI I c ase law when interpreting the comparable provisions o f o ther federal statutes” and noting in particular that “courts h a v e l ooked to Title VI I cases in interpreting the F L SA” (citations omitted)).

The issue in B urling t o n w a s whether the actions a nd harms forbidden by Title VI I ’s a nti-retaliation provision a re confined to those that are r elated to e m p l o y m ent or occur at the workpl a c e

. 5 4 8 U.S. a t 57. F ocusing on differences in lang uag e and purpose b etween the substantive provisions of Title VI I and the anti-retaliation provision, the Court held that Title VI I ’s anti-retaliation provision is not so confined.

There is strong reason to b elieve that Cong r ess intended the differences that its lang uag e sug g ests, for the two provisions differ n o t only in lang uag e but in purpose a s well. The antidiscrimination provision seeks

a w o r kplace where individuals are not d iscriminated ag ainst because of their racial
, ethnic, relig ious, or g ender-based status. The

a n t iretaliation provision seeks to secure tha t primary objective by preventing an employ er f r om interfering (throug h retaliation) with a n employ ee’s efforts to se c u re or advance enforcement o f the Act’s basic g uarantees. Th e s ubstantive provision seeks to prevent injury to individuals based o n who they are, i.e. , their status. The antiretaliation provision seeks to prevent h arm to individuals based on what they do, i.e. , their conduct.A R I A S V

. RA I M O N D O 14

To secure the first objective, Cong ress did not need to proh i b i t any thing other than employ ment-related discriminati on. The substantive pr o vision’s basic o bjective o f “eq uality of employ

ment opportunities” a

nd the elimination of practices that tend to bring about “stratified job environments,” would be

a ch i ev e d w e r e a l l e m p l o y m e n t

- r e l a t e d discrimination miraculously eliminated.

B u t one cannot secure the second objective b y focusing only upon employ e r actions a nd harm that concern employ ment and the

wo rkplace. W ere all such actions and harms eliminated, the antiretaliation provision’s ob j e c t ive would not be achieved. An employ er can effectively r e t a liate ag ainst an

e mploy ee by taking actions not directly related to his emp loy

ment or by causing him harm outside the workplace. . . .

Thus, purpose reinforc es what lang uag e

a l r e a d y i n d i c a t e s , n a m e l y , t h a t t h e

a n t i r e t a l i a t i o n p r o v i s i o n , u n l i k e t h e substantive p rovision, is not limited to discriminatory actions that affect t h e terms and conditions of employ ment. . . .

I n a ny event, as we h ave ex p lained, diffe r e nces in the purpose o f the two provisions remove any perceived “anomaly
, ” f o r t h e y j u s t i f

y t h i s d i f

f e r e n c e o f interpretation. Title VI I depen ds for its

e n f o r c e m e n t u p o n t he cooper a t i o n o fA R I A S V

. RA I M O N D O 15

employ ees who are willing to file complaints and act as witnesses. “Plainly
, eff e c tive enforcement could thus only be ex pected if employ ees felt free to a

pproach o fficials with
t h e i r g r i e v a n c e s

. ” I n t e r p r e t i n g t h e antiretaliation provision to p rovi de broad protect i o n from retaliation helps ensure the

co o p eration upon w hich accomplishment o f the Act’s primary

objective depends.

F or these reasons, w e conclude that Title V I I ’ s s u b s t a n t i v e p r o v i s i o n a n d i t s antiretaliation provision are not coterminous. The scope of the antiretaliation provision

e x t e n d s b e y o n d w o r k p l a c e

- r e l a t e d o r employ ment-related retaliatory acts and harm. W e therefore reject the standards a pplied in the Courts o f Appeals that have t r e ated the antiretaliation p r ovision as forbidding the

s a m e c o n d u c t p r o h i b i t e d b y t h e antidiscrimination provision and that have limited actionable r e taliation to so-called “ultimate employ

ment decisions.”

Id. at 63–67 (citations omitted).

I n our case, the difference in reach between F L SA’s substantiv e e conomic provisions and its anti-retaliation provision is unmistakable. The wag e and hours p r ovisions focus on de facto employ ers, but the anti-retaliation provision ref e r s to “any person” who r etaliates. See 29 U .S.C. § 215(a)(3). I n turn, s ec t ion 203(d) ex tends this concept to “any person acting directly or indirectly in the interest of an employ e r in relation to an employ ee.” See Id. § 203(d).A R I A S V

. RA I M O N D O 16

T hus, Cong ress clearly means to ex tend section 215(a)(3)’ s reach bey ond actual employ e rs. Ra imondo’s activity in this

case on b ehalf of his c lients illustrates the wisdom of this

ex tension.

Althoug h decided before Cong ress amended the F L SA in 1977 to ex p licitly create a p r ivate ri gh t o f a ction for violations of section 2 15(a)(3), the Third Circuit’s opinion in Bowe v. J udson C. Burns, Inc.
, 137 F .2d 37 (3d Cir. 1943) – in which a private rig ht of action for such viol a t ions was implied – reinforces our interpretation of this statute. The Third Circuit rejected a union’s contention that it could not be liable under section 215(a)(3) f o r retaliatio n ag ainst its members bec a u se the union was not the members’ actual employ e r. The court said,

L eg islative intent must be d rawn from the A ct

as a whole. Those portions of the Act

. . . relating to wag es and to hours do apply only
to e mp l oyers

. The prohibitions ex pressed in Section 15, 29 U.S.C.A. § 215, ho w e v e r, a re applicable “ to a

ny person[ .] ” Section 15(a)(3) makes it unlawful for “any person”

. . . whether or not he is a n e mploy er, to discriminate ag ainst any

employ ee.

Id. at 38 (emphasis added).

I n S apperstein v. Hager , 188 F .3d 852, 856–57 (7th Cir. 1999), the Seventh Circuit interpreted and a pplied t h i s “any person” d istinction in a manner that supports our analy sis. The court concluded that secti o n 2 15(a)(3) provides an “alternative b a si s fo r subject matter jurisdiction” where the

e m p loy er’s g ross annual sales amount appeared to fall sh o r tA R I A S V

. RA I M O N D O 17

of the jurisdictional amount required t o bring the employ er within the purview of the F L SA’s wag e and hour provisions set forth in sections 206 and 207. The court held that:

Cong ress made it illeg al for any person, not just an “employ er” a s def i ned under the

s t a t ute, to retaliate ag ainst any employ ee fo r reporting c o nduct “under” o r “related to” violations of the f

ederal minimum w ag e o r

max imum h our laws, whether or not the employ er’s conduct does in fact violate those laws.

. . . Moreover, “the r emedial n a t u re o f the statute further warrant s a n ex pansive interpretation of its provisions. . . .”

Id. at 857 (second omission in orig inal) (quoting Herman v

. RSR Sec. Servs. , 172 F .3d 132, 139 (2d Cir. 1999)).

VI

Conclusion

The F L SA is “remedial and humanitarian in purpose. W e

are not here dealing with mere chattels or articles of trade but with the rig h ts of those who toil, of those who sacrifice a full

measure of their freedom a nd talents to the use and profit o f others . . . . Such a statute must not be interpreted or applied in a narrow, g rudg ing manner.” Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No. 123 , 321 U.S. 590, 597 (1944).

According ly
, we conclude that Arias may proceed with this retaliation action ag ainst Raimondo under F L SA sections 215(a)(3) a

nd 216(b). Ra i m o n d o ’s behavior as alleg e d in Arias’s c omplaint manife s t ly falls within the purview, theA R I A S V

. RA I M O N D O 18

purpose, and the plain lang u ag e of F L SA s e c t i o n s 203(a), 203(d), and 215(a)(3).

Ou r interpretation of these provisions is limited to retaliation c laims. I t d oes not make non-actual empl oy ers like Raimondo liable in t he first instance for any of the substantive wag e and hour economic p rovisions listed in the F L SA. As illust r a t e d b y the Court’s o pinion in Burlington
, th e substantive provisions of statutes like Title VI I a nd the F L SA, and their respective a nti-retaliation provisions, s t a n d

on distinctive g rounds a nd shall be treated differently in interpretation and a

p plication. Ultimatel y a retaliator like Raimondo may become secondarily liable pursuant to section 216(b) for economic reparations, b ut only as a measure o f penalties for his transg ressions.

REVERSED and REMANDED f o r f u r t h e r p r oceeding s.