                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0519n.06

                                          No. 17-2502


                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

 JULISSA DIAZ; KATIA CRUZ;                )
                                          )                                     FILED
       Plaintiffs-Appellants,             )                                 Oct 18, 2018
                                          )                            DEBORAH S. HUNT, Clerk
 v.                                       )
                                          )
 ANDREW STERLING LONGCORE; LONGCORE )
 LEGAL GROUP, PC;                         )
                                          )                    ON APPEAL FROM THE
       Defendants-Appellees,              )                    UNITED STATES DISTRICT
                                          )                    COURT FOR THE WESTERN
 and                                      )                    DISTRICT OF MICHIGAN
                                          )
 LATINOS TAKE OUT, LLC; ROSIBEL VIALET; )
 EDUARDO MADERA, identified on initiating )
 document as Eduardo Mata;                )
                                          )
       Defendants.                        )
                                          )



BEFORE:       BATCHELDER, KETHLEDGE, and WHITE, Circuit Judges.

       ALICE M. BATCHELDER, Circuit Judge. The question in this case is whether an

employer’s outside counsel in a Fair Labor Standards Act (“FLSA”) wage-and-hour action is an

“employer” under the FLSA who may be sued for allegedly violating the FLSA’s anti-retaliation

provision by merely filing a counterclaim against the plaintiff-employees in the underlying wage-

and-hour action. The district court said “no” and dismissed the employer’s outside counsel from

this anti-retaliation lawsuit. We agree and AFFIRM.
No. 17-2502
Julissa Diaz, et al. v. Andrew Longcore, et al.

                                                  I.

       In May 2017, Julissa Diaz and Katia Cruz brought this FLSA anti-retaliation lawsuit

against their employer, Latinos Take Out, LLC, and the individual owners of Latinos Take Out,

Eduardo Madera (originally identified as Eduardo Mata) and Rosibel Vialet (collectively “Latinos

Take Out”). Diaz and Cruz also named as defendants Latinos Take Out’s lawyer, Andrew

Longcore, and his law firm, Longcore Legal Group, PC (collectively “Longcore”).

       Two months earlier, Diaz and Cruz had sued Latinos Take Out in a separate action, alleging

FLSA wage-and-hour violations. Longcore represented Latinos Take Out in that action. Soon

after filing that earlier suit, Diaz and Cruz gave an interview to the local Spanish-language

newspaper about Latinos Take Out’s alleged failure to pay them properly. Latinos Take Out then

filed counterclaims in the FLSA action against Diaz and Cruz, their counsel, and the newspaper,

alleging tortious interference with a business interest, injurious falsehood, defamation, and civil

conspiracy.    The district court declined to exercise supplemental jurisdiction over the

counterclaims and dismissed them.

       Diaz and Cruz then brought this lawsuit, alleging that Latinos Take Out and Longcore

violated the FLSA’s anti-retaliation provision by filing the counterclaims against Diaz and Cruz.

Longcore filed a motion to dismiss, arguing among other things that he was not an “employer”

under the FLSA. The district court granted Longcore’s motion to dismiss and then consolidated

the anti-retaliation claims against Latinos Take Out with the underlying wage-and-hour action.

That action was confidentially settled in March 2018. Diaz now appeals the district court’s order

dismissing Longcore from the anti-retaliation lawsuit.




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No. 17-2502
Julissa Diaz, et al. v. Andrew Longcore, et al.

                                                     II.

        We review de novo a district court’s dismissal for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6). First Am. Title Co. v. Devaugh, 480 F.3d 438, 443 (6th

Cir. 2007). We also review de novo issues of statutory interpretation. See, e.g., Tyrell v. Norfolk

S. Ry. Co., 248 F.3d 517, 520 (6th Cir. 2001).

        “The [FLSA] sets forth employment rules concerning minimum wages, maximum hours,

and overtime pay.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 4 (2011). It

also includes an anti-retaliation provision making it unlawful for “any person” to discharge or

discriminate against employees for attempting to enforce the FLSA’s substantive guarantees. See

id; 29 U.S.C. § 215(a)(3). And it gives “employees”1 a private right of action allowing them to

sue “employer[s]” for violating the anti-retaliation provision. See 29 U.S.C. § 216(b).

        The parties here dispute the reach of the term “employer.” Ordinarily, an “employer” is a

person or organization that employs people. See Employer, Black’s Law Dictionary (10th ed.

2014) (“A person, company, or organization for whom someone works; esp., one who controls

and directs a worker under an express or implied contract of hire and who pays the worker’s salary

or wages.”); Employer, Webster’s Third New International Dictionary (1981) (“One that employs

something or somebody: as . . . the owner of an enterprise (as a business or manufacturing firm)

that employs personnel for wages or salaries . . . [or] such an enterprise itself.”). Longcore was

indisputably not Diaz and Cruz’s employer in the ordinary sense of the word. Diaz and Cruz did

not work for Longcore, and Longcore did not control or direct Diaz and Cruz or pay their wages.




1
  In the underlying wage-and-hour action, there was some dispute about whether Diaz and Cruz were employees or
independent contractors. But Longcore has not questioned whether Diaz and Cruz are “employees” as defined in
29 U.S.C. § 203(e) and used in 29 U.S.C. § 216(b), so we assume for purposes of this appeal that they are.

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No. 17-2502
Julissa Diaz, et al. v. Andrew Longcore, et al.

Diaz and Cruz can therefore sue Longcore only if the FLSA defines “employer” broadly enough

to encompass an employer’s outside counsel under these circumstances.

       The FLSA expands, but does not purport entirely to displace, this ordinary meaning of

“employer.” In contrast to the way the FLSA comprehensively defines most of its statutory terms,

such as “person,” “commerce,” and “state,” see, e.g., 29 U.S.C. § 203(c) (“‘State’ means . . . ”

(emphasis added)), the FLSA merely adds another category of “person[s]” to those ordinarily

considered employers, see 29 U.S.C. § 203(d) (“‘Employer’ includes . . . ” (emphasis added)). As

used in the FLSA, “‘[e]mployer’ includes any person acting directly or indirectly in the interest of

an employer in relation to an employee . . . .” Id. And “‘[p]erson’ means an individual,

partnership, association, corporation, business trust, legal representative, or any organized group

of persons.” 29 U.S.C. § 203(a).

       Diaz and Cruz ask us to interpret these provisions “to provide broad rather than narrow

protection to employees.” But the Supreme Court recently “reject[ed] this principle as a useful

guidepost for interpreting the FLSA” because it is a “flawed premise that the FLSA pursues its

remedial purpose at all costs.” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018)

(internal quotation marks and citations omitted). We must instead give the FLSA a “fair”

interpretation. Id. (quoting A. Scalia & B. Garner, Reading Law 363 (2012)); accord Mosquera

v. MTI Retreading Co., __ F. App’x __, slip op., at 4 & n.1 (6th Cir. Aug. 14, 2018).

       Diaz and Cruz nevertheless argue that the “plain language” of section 203(d) fairly

encompasses Longcore because he was Latinos Take Out’s legal representative and acted in

Latinos Take Out’s interest in relation to Diaz and Cruz. This argument has some appeal. It is

true, as the district court recognized, that “[t]he statute has a broad definition of ‘employer.’”

Accord Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 522 (6th Cir. 2011) (the


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No. 17-2502
Julissa Diaz, et al. v. Andrew Longcore, et al.

FLSA’s definitions, including section 203(d), “are exceedingly broad and generally unhelpful”).

And that definition, considered in isolation, may be read broadly enough to encompass Longcore.

But cases from the Supreme Court and this court, combined with the FLSA’s structure, lead us to

conclude that the correct reading is not so broad. Cf. Kasten, 563 U.S. at 7 (“[T]he language of

the provision, considered in isolation, may be open to competing interpretations. But considering

the provision in conjunction with the purpose and context leads us to conclude that only one

interpretation is permissible.”).

       The Supreme Court has once interpreted the language of section 203(d), and that case

indicates that “any person acting directly or indirectly in the interest of an employer in relation to

an employee” encompasses only persons acting on behalf of the actual employer (in the ordinary

sense of the word) with respect to the employment relationship, such as by hiring, supervising,

paying, and managing employees on behalf of the actual employer. See Falk v. Brennan, 414 U.S.

190, 192–93 & n.4, 195 (1973) (company that was responsible for hiring and supervising another

company’s employees and had “substantial control of the terms and conditions of the work of

th[o]se employees” was an “employer” under the FLSA).

       This interpretation is consistent with the “economic reality” test that this court has used in

previous FLSA cases to determine whether an individual is an “employer.” This test extends FLSA

“employer” liability to individuals who are chief corporate officers of the business, have a

significant ownership interest in the business, control significant aspects of the business’s day-to-

day functions, and determine employee salaries and make hiring decisions. See U.S. Dep’t of

Labor v. Cole Enters., Inc., 62 F.3d 775, 778 (6th Cir. 1995); Fegley v. Higgins, 19 F.3d 1126,

1131 (6th Cir. 1994); Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 965–66 (6th Cir. 1991).




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No. 17-2502
Julissa Diaz, et al. v. Andrew Longcore, et al.

        This interpretation also makes sense in light of the FLSA’s statutory context, particularly

the statutory remedies for anti-retaliation violations. The FLSA entitles employees to seek legal

and equitable relief for retaliation claims, including “employment, reinstatement, promotion, and

the payment of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C.

§ 216(b). It makes sense to apply these enumerated remedies to a person acting on behalf of the

actual employer in the hiring, firing, and paying of employees; it makes much less sense to attempt

to apply them to a person who has no control over the employment relationship between the actual

employer and the employees.

        We therefore hold that FLSA “employer” liability for retaliation claims does not extend to

Longcore because he was not a person acting on behalf of the actual employer, Latinos Take Out,

with respect to the employment relationship, such as by hiring, supervising, paying, and managing

employees on behalf of Latinos Take Out. Longcore did not hire, supervise, pay, or manage Diaz

and Cruz, and Diaz and Cruz have not argued otherwise. Rather, they have argued only that

Longcore acted on behalf of Latinos Take Out with respect to a legal matter. True, that legal

matter was a lawsuit over an employment dispute. But filing a counterclaim in an employment

action on behalf of an employer is wholly different from hiring, supervising, paying, and managing

employees. Longcore’s filing of the counterclaim did not make him an “employer” under the

FLSA.

        In so holding, we reject Diaz and Cruz’s argument that “employer” should be interpreted

more broadly in the anti-retaliation context than in the wage-and-hour context. Diaz and Cruz cite

a case in which the Ninth Circuit accepted that argument and extended FLSA anti-retaliation

liability to an employer’s outside counsel for egregious actions taken by that counsel during a

wage-and-hour action. See Arias v. Raimondo, 860 F.3d 1185, 1187–88, 1192 (9th Cir. 2017).


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No. 17-2502
Julissa Diaz, et al. v. Andrew Longcore, et al.

But “bad facts make bad law,” see, e.g., Tharpe v. Sellers, 138 S. Ct. 545, 547 (2018) (Thomas, J.,

dissenting), and there is no textual indication that Congress created broader liability in private anti-

retaliation lawsuits than it did in private wage-and-hour lawsuits. Congress used the same word—

“[a]ny employer”—in the same statutory section to create liability for violations of both the

FLSA’s wage-and-hour and anti-retaliation provisions. See 29 U.S.C. § 216(b). And the ordinary

rule is that “Congress means the same words in the same statute to mean the same thing.” Texas

Dep’t of Housing & Cmty. Affairs v. Inclusive Cmtys. Project, Inc., 135 S. Ct. 2507, 2535 (2015).

Congress clearly knows how to create broader liability when it wishes to—it created criminal

liability for “[a]ny person who willfully violates” the anti-retaliation provision. See 29 U.S.C.

§ 216(a). So Congress could similarly have created a private right of action against “any person”

for violations of the anti-retaliation provision, but it did not. Congress instead created a private

right of action only against “[a]ny employer,” just as it did for violations of the wage-and-hour

provisions. See 29 U.S.C. § 216(b). We therefore decline Diaz and Cruz’s invitation to interpret

the same word in the same statute to mean different things.

                                                  III.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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