FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ARNULFO ARIAS,

Plaintiff-Appellant,

v.

ANTHONY RAIMONDO,

Defendant-Appellee.

No. 15-16120

D.C. No.

2:13-cv-00904-TLN-EFB

OPINION

Appeal from the United States District Court

for the Eastern District of California

Troy L. Nunley, District Judge, Presiding

Argued and Submitted March 14, 2017

San Francisco, California

Filed June 22, 2017

Before: Stephen S. Trott, Kim McLane Wardlaw,

and Ronald M. Gould, Circuit Judges.

Opinion by Judge Trott
2 ARIAS V. RAIMONDO

SUMMARY*

Labor Law

The panel reversed the district court’s dismissal of a

retaliation claim under the Fair Labor Standards Act.

The plaintiff alleged that after he filed suit against his

employers in state court, the employers’ attorney, acting as

their agent, retaliated against him by planning for U.S.

Immigration and Customs Enforcement to take him into

custody at a scheduled deposition and then to remove him

from the United States. The panel held that unlike the Fair

Labor Standards Act’s wage and hour provisions, its

retaliation provisions apply to “any person” and do not

require that a defendant be the plaintiff’s employer. The

panel remanded the case to the district court for further

proceedings.

COUNSEL

Christopher Ho (argued) and StacyVillalobos, The Legal Aid

Society – Employment Law Center, San Francisco,

California; Esmeralda Zendejas and Blanca A. Bañuelos,

California Rural Legal Assistance, Inc., Stockton, California;

Michael L. Meuter, California Rural Legal Assistance, Inc.,

Salinas, California; for Plaintiff-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ARIAS V. RAIMONDO 3

Scott P. Dixler (argued) and Peder K. Batalden, Horvitz &

Levy LLP, Burbank, California, for Defendant-Appellee.

Nora A. Preciado and Joshua T. Stehlik, National

Immigration Law Center, Los Angeles, California; Jessica

Hahn, National Immigration Law Center, Washington, D.C.;

for Amicus Curiae National Immigration Law Center, Asian

Americans Advancing Justice – Asian Law Caucus, Asian

Americans Advancing Justice – Los Angeles, Bet Tzedek

Legal Services, Centro Legal de la Raza, Farmworker Justice,

Jobs with Justice, National Employment Law Project, New

Orleans Workers’ Center for Racial Justice, UCLA Center for

Labor Research and Education, United Food and Commercial

Workers International Union, and Worksafe Inc.

OPINION

TROTT, Circuit Judge:

Can an employer’s attorney be held liable for retaliating

against his client’s employee because the employee sued his

client for violations of workplace laws? The district court’s

answer was no. We respectfully disagree.

We have jurisdiction over this timely appeal pursuant to

28 U.S.C. § 1291, and we reverse and remand.

I

Background

In 1995, plaintiff José Arnulfo Arias went to work as a

milker for Angelo Dairy. Three Angelos owned and operated
4 ARIAS V. RAIMONDO

the dairy: Luis, Maria, and Joe (“Angelos”). When the

Angelos hired Arias, they did not complete and file a Form I9 (“I-9”) regarding his employment eligibility in the United

States.

An I-9 is a document required by U.S. Citizenship and

Immigration Services (“USCIS”), a component of our

Department of Homeland Security. USCIS explains the

purpose of the I-9 and process as follows:

Form I-9 is used for verifying the identity and

employment authorization of individuals hired

for employment in the United States. All U.S.

employers must ensure proper completion of

Form I-9 for each individual they hire for

employment in the United States. This

includes citizens and noncitizens. . . . 

Employers must retain Form I-9 for a

designated period and make it available for

inspection by authorized government officers.

U.S. Citizenship and Immigration Services, I-9, Employment

Eligibility Verification, https://www.uscis.gov/i-9 (last

updated Jan. 23, 2017).

Instead of complying with federal law, the Angelos

wielded 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.
ARIAS V. RAIMONDO 5

In 2006, Arias sued Angelo Dairy in California state

court. Arias alleged causes of action on behalf of himself and

other employees under California’s Unfair Competition Law

(“UCL”), CAL. BUS. & PROF. CODE § 17200 et seq., for a

variety of workplace violations, including failure to provide

overtime pay and rest and meal periods. Later, he added a

cause of action under California’s Private Attorneys General

Act of 2004 (“PAGA”), CAL. LAB. CODE § 2698 et seq. The

Superior Court struck his representative claims in the UCL

and PAGA causes of action. The 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 Arias 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 August 15, 2011.

II

The Plot Thickens

On June 1, 2011, ten weeks before the state court trial, the

Angelos’ attorney, Anthony Raimondo, set in motion an

underhanded plan 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 barrel plan was captured

in email messages back and forth between Raimondo, Joe

Angelo, and ICE’s forensic auditor Kulwinder Brar. Arias

quoted these revealing exchanges in his current complaint:
6 ARIAS V. RAIMONDO

23. On June 1, 2011, Defendant RAIMONDO

emailed Immigration and Custom

Enforcement (“ICE”) Forensic Auditor

Kulwinder Brar, an employee of the U.S.

Department of Homeland Security. In this

email, Defendant RAIMONDO supplied Brar

with information about Plaintiff’s identity,

and asked Brar to “[l]et me know if there is

anything that you can do. . . .”

24. On the same day, June 1, 2011, all parties

to the 2006 Lawsuit attended a mediation in

Stockton, California. The mediation was

unsuccessful.

25. On June 14, 2011, Defendant

RAIMONDO sent Joe Angelo a text message

stating, “Immigration is trying to verify Arias

[sic] status - let me know if you have any

more info on him.” Joe Angelo responded by

providing Defendant RAIMONDO with

Plaintiff’s driver’s license number. . . .

26. On June 15, 2011, Defendant

RAIMONDO emailed to ICE Auditor Brar the

information Joe Angelo had provided. In

doing so, Defendant RAIMONDO stated, “I

hope this helps. [Plaintiff] will be attending a

deposition next week. If there is an interest in

apprehending him, please let me know so that

we can make the necessary arrangements. . . .”

27. On June 16, 2011, ICE Auditor Brar

responded toDefendant RAIMONDO’s email
ARIAS V. RAIMONDO 7

of June 1, 2011, stating that “[b]ased on our

records he [Plaintiff] has no legal status. We

will be forwarding this information to ERO

[Enforcement and Removal Operations] and

your contact information if they want to

proceed with this matter. . . .”

28. Defendant RAIMONDO replied to ICE

Auditor Brar, asking her to “[p]lease let ERO

know that they can expect our full cooperation

and assistance”, and to “let me know if there

is anything I can do to be of assistance to

you.” Brar responded, “No problem and we

will get your contact information as soon as

contact is made.”

Arias’s current complaint also alleged the impact of

Raimondo’s actions on him and his case, and Raimondo’s

pattern and practice of similar conduct in other cases:

29. Plaintiff became aware on June 22, 2011

that Defendant had provided information

concerning Plaintiff to the immigration

authorities. Fearing that he would be deported

and separated from his family, Plaintiff

suffered anxiety, mental anguish, and other

emotional distress from Defendant’s

retaliatory action.

30. On July 11, 2011, one month before trial,

the parties participated in a settlement

conference. In lieu of proceeding to trial on

the wage and hour claims comprised within

the 2006 Lawsuit, Plaintiff entered into a
8 ARIAS V. RAIMONDO

settlement and release of those claims, due in

substantial part to the threat of deportation

created by Defendant’s communications with

ICE.

31. On information and belief, Defendant

RAIMONDO’s actions against Plaintiff are

reflective of and consistent with his pattern

and practice of retaliating against employees

who assert their workplace rights. In fact,

Defendant RAIMONDO has stated in a

declaration filed in a court action that it is his

practice to investigate the immigration status

of plaintiffs who have brought legal claims

against his clients. . . .

32. On at least five additional occasions, and

consistent with his pattern and practice,

Defendant RAIMONDO has contacted ICE

with respect to employees who have asserted

their workplace rights against employers

whom Defendant RAIMONDO has

represented, and has offered his assistance to

ICE in apprehending those employees. . . .

33. On May 2, 2013, Defendant RAIMONDO

confirmed the above pattern and practice in an

email he sent to Thomas Hester of the Office

of Inspector General at the Legal Services

Corporation, in which he stated, “The time

when I have had litigants deported, I have

always simply taken action rather than make

any threats. The attorneys find out when their

clients are already gone.”
ARIAS V. RAIMONDO 9

III

Arias’s Complaint

On May 8, 2013, Arias filed this lawsuit against Angelo

Dairy, the Angelos, and Raimondo in the Eastern District of

California. Arias alleged that the defendants violated section

215(a)(3) of the Fair Labor Standards Act (“FLSA”),

29 U.S.C. § 201 et seq.1

Arias’s theory of his case is 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 legal defense is that

because he was never Arias’s actual employer, he cannot be

held liable under the FLSA for retaliation against someone

who was never his employee.

Angelo Dairy and its owners settled their part of this case

at the early stages of its existence.

IV

A.

The District Court’s Dismissal

Notwithstanding section 215(a)(3)’s reference to “any

person,” section 203(a)’s inclusion of a legal representative

as a “person,” and section 203(d)’s plain language defining

“employer,” the district court granted Raimondo’s motion to

1 Arias’s current complaint also contains claims for intentional

infliction of emotional distress and unfair competition.
10 ARIAS V. RAIMONDO

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). 

The court did so without the benefit of oral argument,

concluding that because Arias “ha[d] not alleged that

[Raimondo] exercised any control over [his] employment

relationship,” Raimondo as a matter of law could not be

Arias’s employer.

B.

Standard of Review

We review de novo a Rule 12(b)(6) dismissal for failure

to state a claim, and we take all allegations of material fact as

true, construing them in the light most favorable to the

nonmoving party, here Arias.

V

Discussion

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.” Id. § 203(a). Section 216(b) in turn

creates a private right of action against any “employer” who

violates section 215(a)(3); and the FLSA defines “employer”

to include “any person acting directly or indirectly in the

interest of an employer in relation to an employee.” Id.

§§ 203(d), 216(b).

Controversies under FLSA sections 206 and 207 that

require a determination of primary workplace liability for
ARIAS V. RAIMONDO 11

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.

Retaliation is a different animal altogether. Its purpose is

to enable workers to avail themselves of their statutory rights

in court by invoking the legal process designed by Congress

to protect them. Robinson v. Shell Oil Co., 519 U.S. 337, 346

(1997) (the “primary purpose of antiretaliation provisions” is

to “[m]aintai[n] unfettered access to statutory remedial

mechanisms”).

This distinctive purpose 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 in section 215(a)(3) 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 district court based its decision on precedent

pertaining to whether a person was an employer for purposes

of the FLSA’s substantive economic provisions, i.e., those
12 ARIAS V. RAIMONDO

involving wages and hours, etc., not section 215(a)(3)

retaliation. See Boucher v. Shaw, 572 F.3d 1087, 1090–93

(9th Cir. 2009) (holding that an employer’s individual

managers were personally liable under the FLSA for unpaid

wages, pursuant to an “economic control” test); Bonnette v.

Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.

1983) (holding that state and county agencies were employers

of in-home chore workers who alleged violations ofminimum

wage provisions).

The district court also relied on Dellinger v. Science

Applications International Corp., 649 F.3d 226 (4th Cir.

2011). However, Dellinger is inapposite because Dellinger

was never officially hired by the defendant. All Dellinger

stands for is that “the FLSA gives an employee the right to

sue only his or her current or former employer and that a

prospective employee cannot sue a prospective employer for

retaliation.” Id. at 227 (emphasis added). In other words, a

person who never worked for the employer – in our case

Angelo Dairy – does not fit anywhere in the FLSA. See id. at

230 n.2. Because Angelo Dairy was Arias’s actual employer,

Arias is indisputably an employee, as section 215(a)(3) uses

that term.

These cases and the others the district court relied on are

not in tension with our decision. The cases are simply

inapposite in the context of an allegation of retaliation.

The Supreme Court’s decision in Burlington Northern &

Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), supports

our analysis, albeit in a different context: Title VII of the

Civil Rights Act of 1964’s (“Title VII”) anti-retaliation

provision, 42 U.S.C. § 2000e-3(a). See Darveau v. Detecon,

Inc., 515 F.3d 334, 342 (4th Cir. 2008) (recognizing “the
ARIAS V. RAIMONDO 13

almost uniform practice of courts in considering the

authoritative body of Title VII case law when interpreting the

comparable provisions of other federal statutes” and noting in

particular that “courts have looked to Title VII cases in

interpreting the FLSA” (citations omitted)).

The issue in Burlington was whether the actions and

harms forbidden by Title VII’s anti-retaliation provision are

confined to those that are related to employment or occur at

the workplace. 548 U.S. at 57. Focusing on differences in

language and purpose between the substantive provisions of

Title VII and the anti-retaliation provision, the Court held that

Title VII’s anti-retaliation provision is not so confined.

There is strong reason to believe that

Congress intended the differences that its

language suggests, for the two provisions

differ not only in language but in purpose as

well. The antidiscrimination provision seeks

a workplace where individuals are not

discriminated against because of their racial,

ethnic, religious, or gender-based status. The

antiretaliation provision seeks to secure that

primary objective by preventing an employer

from interfering (through retaliation) with an

employee’s efforts to secure or advance

enforcement of the Act’s basic guarantees. 

The substantive provision seeks to prevent

injury to individuals based on who they are,

i.e., their status. The antiretaliation provision

seeks to prevent harm to individuals based on

what they do, i.e., their conduct.
14 ARIAS V. RAIMONDO

To secure the first objective, Congress did not

need to prohibit anything other than

employment-related discrimination. The

substantive provision’s basic objective of

“equality of employment opportunities” and

the elimination of practices that tend to bring

about “stratified job environments,” would be

achieved were all employment-related

discrimination miraculously eliminated.

But one cannot secure the second objective by

focusing only upon employer actions and

harm that concern employment and the

workplace. Were all such actions and harms

eliminated, the antiretaliation provision’s

objective would not be achieved. An

employer can effectively retaliate against an

employee by taking actions not directly

related to his employment or by causing him

harm outside the workplace. . . .

Thus, purpose reinforces what language

already indicates, namely, that the

antiretaliation provision, unlike the

substantive provision, is not limited to

discriminatory actions that affect the terms

and conditions of employment. . . .

In any event, as we have explained,

differences in the purpose of the two

provisions remove any perceived “anomaly,”

for they justify this difference of

interpretation. Title VII depends for its

enforcement upon the cooperation of
ARIAS V. RAIMONDO 15

employees who are willing to file complaints

and act as witnesses. “Plainly, effective

enforcement could thus only be expected if

employees felt free to approach officials with

their grievances.” Interpreting the

antiretaliation provision to provide broad

protection from retaliation helps ensure the

cooperation upon which accomplishment of

the Act’s primary objective depends.

For these reasons, we conclude that Title

VII’s substantive provision and its

antiretaliation provision are not coterminous. 

The scope of the antiretaliation provision

extends beyond workplace-related or

employment-related retaliatoryacts and harm. 

We therefore reject the standards applied in

the Courts of Appeals that have treated the

antiretaliation provision as forbidding the

same conduct prohibited by the

antidiscrimination provision and that have

limited actionable retaliation to so-called

“ultimate employment decisions.”

Id. at 63–67 (citations omitted).

In our case, the difference in reach between FLSA’s

substantive economic provisions and its anti-retaliation

provision is unmistakable. The wage and hours provisions

focus on de facto employers, but the anti-retaliation provision

refers to “any person” who retaliates. See 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.” See Id. § 203(d). 
16 ARIAS V. RAIMONDO

Thus, Congress clearly means to extend section 215(a)(3)’s

reach beyond actual employers. Raimondo’s activity in this

case on behalf of his clients illustrates the wisdom of this

extension.

Although decided before Congress amended the FLSA in

1977 to explicitly create a private right of action for

violations of section 215(a)(3), the Third Circuit’s opinion in

Bowe v. Judson C. Burns, Inc., 137 F.2d 37 (3d Cir. 1943) –

in which a private right of action for such violations 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) for retaliation against its

members because the union was not the members’ actual

employer. The court said,

Legislative intent must be drawn from the Act

as a whole. Those portions of the Act . . .

relating to wages and to hours do apply only

to employers. The prohibitions expressed in

Section 15, 29 U.S.C.A. § 215, however, are

applicable “to any person[.]” Section 15(a)(3)

makes it unlawful for “any person” . . .

whether or not he is an employer, to

discriminate against any employee.

Id. at 38 (emphasis added).

In Sapperstein v. Hager, 188 F.3d 852, 856–57 (7th Cir.

1999), the Seventh Circuit interpreted and applied this “any

person” distinction in a manner that supports our 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
ARIAS V. RAIMONDO 17

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. . . .”

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

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

VI

Conclusion

The FLSA is “remedial and humanitarian in purpose. We

are not here dealing with mere chattels or articles of trade but

with the rights of those who toil, of those who sacrifice a full

measure of their freedom and talents to the use and profit of

others . . . . Such a statute must not be interpreted or applied

in a narrow, grudging manner.” Tenn. Coal, Iron & R.R. Co.

v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944).

Accordingly, we conclude that Arias may proceed with

this retaliation action against Raimondo under FLSA sections

215(a)(3) and 216(b). Raimondo’s behavior as alleged in

Arias’s complaint manifestly falls within the purview, the
18 ARIAS V. RAIMONDO

purpose, and the plain language of FLSA sections 203(a),

203(d), and 215(a)(3).

Our interpretation of these provisions is limited to

retaliation claims. It does not make non-actual employers

like Raimondo liable in the first instance for any of the

substantive wage and hour economic provisions listed in the

FLSA. As illustrated by the Court’s opinion in Burlington,

the substantive provisions of statutes like Title VII and the

FLSA, and their respective anti-retaliation provisions, stand

on distinctive grounds and shall be treated differently in

interpretation and application. Ultimately a retaliator like

Raimondo may become secondarily liable pursuant to section

216(b) for economic reparations, but only as a measure of

penalties for his transgressions.

REVERSED and REMANDEDforfurther proceedings.