1. In your opinion, is there a conundrum created by legal protection against retaliation offered to the individuals in this case? They were working in the United States legally and then “absconded” (the legal term for the circumstances of the case), and the court held that they suffered a form of retaliation and sought protection of the court system. What is your impression of the dicta and holding in this case?

2. Would it be relevant to your above response if the defendants had recruited the workers to work for them in the United States?

3. Do you agree with the court in Patel that protecting undocumented aliens by requiring that employers treat them the same as other workers will discourage illegal immigration?

Issue: Whether employees’ filing of wage claim was protected activity, and whether employer’s reporting the employees to the INS, and charging that the employees were “terrorists” constitutes an adverse employment action (retaliation).

Facts: Plaintiffs are workers from Peru who entered the U.S. legally as H-2A agricultural workers, who are permitted to remain in the U.S. only so long as they are employed by a particular employer. In a wage dispute with the farm owners, the workers left the farm unannounced. Perry, the defendant, reported the workers to the INS. The workers subsequently filed an action against the farm owners under the FLSA and the MSAWPA. Immediately after he learned of the suit, the defendant told INS agents that the workers were part of a Peruvian terrorist group. Despite having no proof, he repeated that charge to several government agencies and officials.

Decision: The Court denied Perry’s motion to dismiss, granted the plaintiff’s motion for a preliminary injunction against Perry, and also held that the workers had established a prima facie case of retaliation. “To establish a prima facie claim of retaliation in violation of the FLSA, a plaintiff must show

(1) Participation in protected activity known to the defendant;

(2) An employment action disadvantaging the plaintiff; and

(3) A causal connection between the protected activity and the adverse employment action.

The Court finds that the plaintiffs have established a prima facie case of retaliation in this case.”