Petition for Writ of Certiorari — Frank Faillace, Petitioner v. Zoe Hollis

No.

IN THE

Supreme Court of the United States

————

FRANK FAILLACE,

Petitioner,

v.

ZOE HOLLIS,

Respondent.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

————

PETITION FOR WRIT OF CERTIORARI

————

C. ROBERT STERINGER

Counsel of Record

ANTHONY KUCHULIS

DUNN CARNEY LLP

851 SW Sixth Ave, Suite 1500

Portland, Oregon 97204

(503) 224-6440

BSteringer@dunncarney.com

Counsel for Petitioner

February 17, 2026

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

i

QUESTIONS PRESENTED

The Fair Labor Standards Act (“FLSA”) prohibits

retaliation by an employer or “any person acting

directly or indirectly in the interest of an employer in

relation to an employee.” 29 U.S.C. §§ 203(d),

215(a)(3), 216(b). Section 216(b) only authorizes

private civil actions to claims against an “employer.”

The questions presented are:

1. Whether 29 U.S.C. § 216(b) authorizes a private

retaliation action against a person that did not

employ the plaintiff?

2. Whether the FLSA authorizes adjudication of a

time-barred misclassification claim to establish

“employee” status for the secondary purpose of

pursuing a third-party retaliation claim against

a non-employer?

ii

LIST OF PARTIES TO THE PROCEEDINGS

Petitioner Frank Faillace was a defendant in the

district court and an appellee in the court of appeals.

Respondent Zoe Hollis was the plaintiff in the district

court and the appellant in the court of appeals.

CORPORATE DISCLOSURE STATEMENT

Petitioner is an individual. No corporate disclosure

statement is required.

LIST OF PROCEEDINGS

This case arises out of the following proceedings:



Hollis v. R&R Restaurants, Inc, No. 3:21-cv965-YY (Or. 2024) (judgment entered March 26,

2024)



Hollis v. R&R Restaurants, Inc, No. 24-2464

(9th Cir. 2025) (judgment entered Nov. 18,

2025)

There are no related proceedings within the meaning

of this Court's Rule 14.1(b)(iii).

iii

TABLE OF CONTENTS

Page

PETITION FOR WRIT OF CERTIORARI .............. ...1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISIONS INVOLVED .................. 1

STATEMENT OF THE CASE .................................... 3

A.

Statutory Framework ............................ 5

B.

Facts ....................................................... 9

C.

Proceedings........................................... 11

REASONS FOR GRANTING .................................... 13

A.

The Ninth Circuit Rule ........................ 15

B.

The Majority Rule ................................ 19

C.

Time Barred Claims ............................. 25

D.

Expanding Conflict .............................. 28

E.

Conclusion ............................................ 29

iv

TABLE OF AUTHORITIES

CASES

Arias v. Raimondo860 F.3d 1185 (9th Cir. 2017).........

4-5, 12, 15-20, 22-23, 28

Boucher v. Shaw, 572 F.3d 1087 (9th Cir. 2009) ...... 19

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53 (2006) ................................................................. 17

Cramton v. Grabbagreen Franchising LLC, No. CV17-04663-PHX-DWL, 2019 WL 7048773, at *25

(D. Ariz. Dec. 23, 2019) .......................................... 20

Dellinger v. Sci. Applications Int’l Corp., 649 F.3d 226

(4th Cir. 2011) ........................................ 5, 7-8, 21-22

Diaz v. Longcore, 751 F. App’x 755 (6th Cir. 2018) ......

5, 16, 23-25

Encino Motorcars, LLC v. Navarro, 584 U.S. 79

(2018) .................................................................. 9, 24

Evans v. Dart, No. 20 C 2453, 2021 WL 2329372

(N.D. Ill. June 8, 2021) .......................................... 20

Falk v. Brennan, 414 U.S. 190 (1973)...... 9, 19, 23, 25,

Kasten v. Saint-Gobain Performance Plastics Corp.

563 U.S. 1, at 7 (2011)...................................... 24, 29

Kasten v. Saint-Gobain Performance Plastics Corp.,

563 U.S. 1 (2011), ................................................... 23

Kim v. Lee, 2023 WL 2317248 (2d Cir. Mar. 2, 2023)

5, 18, 22-23

Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S.

Ct. 843 (1997) ......................................................... 28

Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No.

123, 321 U.S. 590 (1944) ....................................... 17

v

STATUTES

28 U.S.C. § 1254(1) ...................................................... 1

29 U.S.C §206(a) .......................................................... 6

29 U.S.C. § 202 ................................................ 6, 19, 24

29 U.S.C. § 203(3)(e)(1) ............................................... 8

29 U.S.C. § 203(d) ............. 3, 8, 12, 14, 16, 18-19,21-26

29 U.S.C. § 207(a) ........ 3, 8, 12, 14 ,1618-19, 21-26, 28

29 U.S.C. § 215(a)(3) ..................... 3, 7-8, 14, 16, 21, 29

29 U.S.C. § 216(a) .................................................. 7, 23

29 U.S.C. § 216(b) .............. 2, 3, 6-10, 14, 16, 20-22, 26

29 U.S.C. § 216(c) ........................................................ 7

29 U.S.C. § 217 ............................................................ 7

29 U.S.C. § 255(a) ...................................................... 27

1

PETITION FOR WRIT OF CERTIORARI

Frank Faillace respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit in this

case.

OPINIONS BELOW

The opinion of the Ninth Circuit is published at

159 F.4th 677 (9th Cir. 2025) and is reproduced in the

appendix to this petition at App. 1a-21a.

The district court’s order adopting the

magistrate judge’s findings and recommendations and

granting summary judgment is unreported but

available at 2024 WL 1270896 and is reproduced in

the appendix to this petition at App. 22a-23a.

The report and recommendations of the

magistrate judge is unreported but available at 2023

WL 8605753 and is reproduced in the appendix to this

petition at App. 28a-51a.

JURISDICTION

The Ninth Circuit issued its opinion on November 18,

2025. This Court has jurisdiction under 28 U.S.C. §

1254(1).

STATUTORY PROVISIONS INVOLVED

29 U.S.C. § 203(d) provides in relevant part:

“‘Employer’ includes any person acting directly

or indirectly in the interest of an employer in

relation to an employee . . .”

29 U.S.C. § 215(a)(3) provides in relevant part:

“… it shall be unlawful for any person—

2

to discharge or in any other manner

discriminate against any employee because

such employee has filed any complaint or

instituted or caused to be instituted any

proceeding under or related to this chapter ...”

29 U.S.C. § 216(a) provides in relevant part:

“Any person who willfully violates any of the

provisions of section 215 of this title shall upon

conviction thereof be subject to a fine of not

more than $10,000, or to imprisonment for not

more than six months, or both.”

29 U.S.C. § 216(b) provides in relevant part:

“Any employer who violates the provisions of

section 206 or section 207 of this title shall be

liable to the employee or employees affected in

the amount of their unpaid minimum wages, or

their unpaid overtime compensation, as the

case may be, and in an additional equal amount

as liquidated damages. Any employer who

violates the provisions of section 215(a)(3) or

218(d) shall be liable for such legal or equitable

relief as may be appropriate to effectuate the

purposes of section 215(a)(3) . . . including

without limitation employment, reinstatement,

promotion, and the payment of wages lost and

an additional equal amount as liquidated

damages… An action to recover the liability

prescribed in the preceding sentences may be

maintained against any employer (including a

public agency) in any Federal or State court of

competent jurisdiction by any one or more

employees for and in behalf of himself or

3

themselves and other employees similarly

situated.

STATEMENT OF THE CASE

For the first time in the 88-year history of the

Fair Labor Standards Act (“FLSA”), an appellate court

has authorized a private retaliation action brought by

a non-employee against a non-employer. In doing so, it

departed from the established interpretation of the

FLSA’s text, eliminated well-established limits, and

widened a direct and growing conflict with other

circuits.

The statutory framework is straightforward.

The FLSA prohibits “any person” from retaliating

against an employee for invoking rights under the Act.

29 U.S.C. § 215(a)(3). But Congress limited a private

cause of action to only an employer. 29 U.S.C. § 216(b).

The statute separately defines “employer” to include

“any person acting directly or indirectly in the interest

of an employer in relation to an employee.” § 203(d).

For decades, courts have understood a

distinction between “any person” being liable for a

violation, but only “employers” being liable for a

private cause of action. While retaliation may be

unlawful if committed by “any person,” an employee

can only pursue a lawsuit against their current or

former “employer.” To determine whether a defendant

is an employer, courts apply the familiar “economic

reality” or “operational control” test—asking whether

the defendant exercised control over the terms and

conditions of the plaintiff’s employment.

In two big steps, the Ninth Circuit moved away

from that framework, and the majority circuit rule.

The first step came in Arias v. Raimondo860

F.3d 1185 (9th Cir. 2017), cert. denied, 138 S.Ct. 673

(2018). There, the court held that a non-employer

4

attorney acting on behalf of the plaintiff’s employer

could be liable under § 216(b) for retaliation. Id. The

court understood that the authorizing statute required

an employer relationship. § 216(b). But, the court held

that the definition of “employer” referenced “any

person” acting “directly or indirectly in the interest of

an employer.” The Ninth Circuit held that this broad

definition of employer authorized employees to bring

claims against “any person” that acted on the

employer’s behalf. Every other appellate circuit,

however, disagrees.

The second big step came in the decision below

on this matter, where the Ninth Circuit took the Arias

holding further.

In this case, Petitioner never

employed the plaintiff, did not act on the employer’s

behalf, and did not participate in any employment

relationship with plaintiff at any time. Despite this,

the Ninth Circuit held that any person who indirectly

benefits an employer can be sued for FLSA retaliation.

The court did not indicate an overarching rule for what

qualifies as an “indirect benefit” to an employer. Only

that such benefit only needs to be a “lesser nexus” than

direct benefit to the employer, like in Arias. App. 11a.

The Ninth Circuit also dismissed any requirement

that the defendant act under the employer’s direction,

control, or in collaboration. The ruling significantly

expands the universe of potential defendants that

plaintiffs may target for FLSA retaliation. To what

extent, will depend on the parameters of the Ninth

Circuit’s “lesser nexus” requirement to qualify as an

indirect benefit to an employer.

Those two big steps, Arias and this case, cement

the Ninth Circuit’s conflict with the Second, Fourth,

and Sixth Circuits on the scope of FLSA retaliation

claims. Since 2011, each of those courts have

confirmed the well-established rule that employees

5

can only bring a private cause of action under the

FLSA against an employer. See Kim v. Lee, 2023 WL

2317248 (2d Cir. Mar. 2, 2023); Dellinger v. Sci.

Applications Int’l Corp., 649 F.3d 226 (4th Cir. 2011);

Diaz v. Longcore, 751 F. App’x 755 (6th Cir. 2018). In

this case, the Ninth Circuit declined to reconsider its

position despite acknowledging an open conflict with

other circuits. See App. 13a, fn. 4. The result is a direct

and entrenched circuit split on the scope of private

liability under the FLSA’s retaliation provision.

The practical consequences are significant. In

the Ninth Circuit, private retaliation liability is no

longer tethered to an employment relationship,

operational control, or even agency. A defendant need

not be an employer, act on an employer’s behalf, or

participate in the employment relationship. A plaintiff

that filed an FLSA claim may pursue retaliation

claims against anyone they believe discriminated

against them on that basis. Potential liability seems

literally limitless.

A federal statute of the FLSA’s significance and

nationwide application should not mean one thing in

the largest circuit and something else entirely

elsewhere. This case squarely presents the question

whether § 216(b) authorizes private retaliation suits

against unaffiliated third parties. It offers a clean

vehicle to resolve the acknowledged circuit conflict and

restore uniformity to the Act’s enforcement scheme.

A. Statutory Framework

Enacted in 1938, the Fair Labor Standards Act

“covers more than 143 million workers at more than

6

9.8 million establishments nationwide.”1 It regulates

the relationship between employers and their

employees to “correct and as rapidly practicable to

eliminate” “the existence, in industries engaged in

commerce or in the production of goods for commerce,

of labor conditions detrimental to the maintenance of

the minimum standard of living necessary for health,

efficiency, and general well-being of workers.” 29

U.S.C. § 202.

To this end, the Act establishes a minimum

wage §206(a), and maximum working hours, 29

U.S.C. § 207(a). The Act imposes these duties on

employers, with the intended beneficiaries being

employees. The FLSA protects these substantive

rights by prohibiting retaliation, which it defines as

discrimination “against any employee because such

employee has filed any complaint or instituted or

caused to be instituted any proceeding under or

related to this chapter.” Id. § 215(a)(3). See also,

Dellinger, 649 F.3d at 228.

The statute contains guardrails that direct the

enforcement of retaliation. For example, the Act may

be enforced by government action, including criminal

prosecutions, § 216(a) and civil enforcement actions by

the Secretary of Labor. Id. §§ 216(a), 216(c), and § 217.

To protect their right to a minimum wage and

maximum hours, employees are authorized to sue not

only for violations of the Act's wage and hours

provisions, but also for retaliation. The authorization

for employee enforcement under § 216(b) provides in

relevant part:

1 U.S. Dep't of Lab., Small Entity Compliance Guide to the Fair

Labor Standards Act's Exemptions 2, https://www.dol.gov/agen

cies/whd/overtime/rulemaking/small-entity-compliance-guide

7

Any employer who violates the provisions

of section

215(a)(3) [prohibiting

retaliation] of this title shall be liable for

such legal or equitable relief as may be

appropriate

…

including

without

limitation employment, reinstatement,

promotion, and the payment of wages lost

and an additional equal amount as

liquidated damages. An action to recover

the liability prescribed in either of the

preceding sentences may be maintained

against any employer ... in any Federal or

State court of competent jurisdiction by

any one or more employees for and in

behalf of himself or themselves and other

employees similarly situated.

§ 216(b). The statute authorizes “any one or more

employees” to maintain an action against “any

employer” that violates the retaliation provision of the

Act. Id. The plain language of this portion of the Act’s

application only to “employees” and their “employers”

is bolstered by the remedies listed, including

“reinstatement, and the payment of wages lost…” Id.

Those remedies presuppose a direct employment

relationship between the plaintiff and defendant to an

action.

Moreover, the Act prohibits retaliation “against

any employee” because the employee sued the

employer to enforce a substantive right. § 215(a)(3).

Under § 203(3)(e)(1) of the Act, an “employee” is

defined as “any individual employed by an employer.”

Based on this, the Dellinger court reasoned that: “by

using the term ‘employee’ in the anti-retaliation

provision, Congress was referring to the employeremployee relationship.” Dellinger, 649 F.3d at 228-

8

229. Therefore, “[t]he regulation of which underlies

the Act as a whole, and was therefore providing

protection to those in an employment relationship

with their employer.” Id.

The Act also defines an “employer” only in

relation to “an employee.” § 203(d). As relevant here,

the statutory definition states that an Employer

“includes any person acting directly or indirectly in the

interest of an employer in relation to an employee.” 29

U.S.C. § 203(d). That definition broadens who may

qualify as an employer within the employment

relationship. It does not eliminate the requirement

that the relationship be one of employer and employee,

nor does it extend private enforcement rights beyond

the limits set in § 216(b).

The relevant statutes limit private claims for

retaliation to employees seeking redress from their

employers. These key statutory guardrails ensure the

Act maintains its core purpose of protecting employees

from employer misconduct. This Court has recognized

and enforced those statutory limits. It rejected the

premise that the Act’s remedial purpose overrides its

text, explaining that it is a “flawed premise that the

FLSA pursues its remedial purpose at all costs.”

Encino Motorcars, LLC v. Navarro, 584 U.S. 79, 89,

138 S. Ct. 1134, 1142, 200 L. Ed. 2d 433 (2018).

This Court also confirmed in Falk v. Brennan

that the Act’s seemingly broad definition of “employer”

refers to “any persons” acting on the employer’s behalf

only with respect to the employment relationship

itself. 414 U.S. 190, 192–95 & n.4 (1973). Based on the

plain language of the Act, and this Court’s

interpretation of the same, the majority of courts

correctly hold that only employees may bring a private

cause of action against an employer.

9

B. Facts

Respondent performed as an exotic dancer at

Sassy’s, an adult-entertainment venue operated by

R&R Restaurants, Inc. App. 2a. Respondent danced at

Sassy’s from June 2017 until March 2019 pursuant to

a written independent contractor agreement. Id.

During that period, Respondent worked multiple

shifts per week. Id. When not at Sassy’s, Respondent

performed at other clubs. Id. While dancing at Sassy’s,

Respondent did not challenge or question the parties’

agreed upon contractor classification. Two years after

their last performance at Sassy’s, Respondent filed the

underlying lawsuit alleging misclassification and

unpaid wages. Id.

Petitioner has an ownership interest in Sassy’s.

App. 10a. Petitioner’s limited management of Sassy’s

meant that Respondent did not target him personally

in the first complaint, which did name two other

managers and owners. App. 5a. Moreover, it is

undisputed that Petitioner did not employ Respondent

in any capacity at the time of the alleged retaliation.

App. 29a.

Separate from Sassy’s, Petitioner is a part

owner and active manager of Dante’s, a Portland liveperformance venue that hosts music and variety

shows. App. 43a. Dante’s is not affiliated with Sassy’s

operations and offers a greater variety of live

performance-based acts. Id. For over twenty years,

Dante’s has hosted a once-weekly show known as

“Sinferno Cabaret,” featuring short acts that include

fire shows, burlesque performances, contortion,

juggling, pole dancing, and more. App. Id.

Respondent had performed two prior Sinferno

shows, with each being a one-off event. 48a. Several

years after Respondent’s last dance at Sassy’s, they

10

received an email confirming a five-minute, one-song,

performance slot at a future Sinferno event. App. 44a.

The overall show lasted more than two hours and

featured at least nine other performers. Id.

Six days later, on June 28, 2021, Respondent

filed a collective action under 29 U.S.C. § 216(b)

against Sassy’s and individually named managers and

owners. App. 5a. The complaint alleged that Sassy’s

had misclassified Respondent and other dancers as

independent contractors and sought wage-and-hour

damages under the FLSA. Id. Respondent did not

initially name Petitioner in the lawsuit and did not

allege that Petitioner managed or controlled

Respondent’s work at Sassy’s.

On July 19, 2021, Petitioner emailed

Respondent to cancel the upcoming Sinferno

performance. App. 44a. In the email, Petitioner

explained that he was a partner at Sassy’s and

Respondent’s lawsuit created legal complications. Id.

Specifically, he stated that because the lawsuit

challenged independent contractor classifications,

allowing Respondent to perform at Dante’s under a

contractor arrangement could expose that separate

business to litigation risk. Id. The email further stated

that counsel had advised against permitting the short

upcoming performance in light of the pending lawsuit.

Id.

Shortly thereafter, Respondent amended the

complaint to add Petitioner as a defendant. App. 45a.

As relevant here, the amended claim alleged that

Petitioner unlawfully retaliated against Respondent

for filing an FLSA complaint by terminating the

Sinferno performance. Id.

11

C. Proceedings

After discovery and summary judgment

briefing, the assigned magistrate judge issued detailed

findings and recommendations. App. 28a-52a. The

magistrate judge concluded that Respondent’s FLSA

misclassification and wage-and-hour claims against

Sassy’s were time-barred by the Act’s statute of

limitations. App. 37a.

The magistrate judge separately addressed the

retaliation claim. After concluding that the retaliation

claim was timely, the magistrate judge held that it

“fail[ed] as a matter of law” because the undisputed

evidence showed that Respondent was “not an

employee of Dante’s or Faillace’s at the time of the

alleged retaliation.” Id. Based on that, the court

applied the plain language of the Act to dismiss the

retaliation claim because “plaintiff was not an

employee” of Petitioner or Dante’s at the time of the

alleged retaliation. Id.

The district court adopted the findings and

recommendations in full. App. 24a-27a. Judge Simon

granted summary judgment on all federal claims,

entered final judgment dismissing Respondent’s FLSA

claims with prejudice, and dismissed the remaining

state-law retaliation claim without prejudice. Id.

On appeal, Respondent did not challenge the

dismissed wage-and-hour claims. App. 2a. Respondent

only appealed the retaliation claim related to the

cancellation of Respondent’s one-off performance at

Dante’s, and whether that constituted a basis for a

private right of action for retaliation under the FLSA.

Id.

The Ninth Circuit reversed. App. 2a. Relying on

Arias v. Raimondo, the panel signaled it would

“further clarify the boundaries of the FLSA’s private

12

right of action for retaliation.” App. 3a. 860 F.3d 1185

(9th Cir. 2017). In Arias, the Ninth Circuit permitted

a retaliation claim against an employer’s attorney for

conduct undertaken during pending wage-and-hour

litigation by the plaintiff. App. 3a, citing Arias, 860

F.3d at 1192.

In this case, the Ninth Circuit went further

down that road. It determined that a defendant may

act “indirectly in the interest of an employer” without

“an agency relationship with the actual employer or

the conferral of any direct benefit to the employer.”

App. 3a, citing § 203(d)). Applying that guidance, the

panel concluded that Petitioner’s email cancelling the

Sinferno performance “constituted an indirect effort to

minimize any liability of Sassy’s as well as Dante’s.”

App. 12a. The panel determined that the cancelled

performance “penalized Hollis for filing the lawsuit

and would dissuade a reasonable person in Hollis’s

position from filing a lawsuit in the first place.” Id.

The panel did acknowledge that the Act

requires an underlying employment relationship. But,

allowed that “[a]s long as Hollis can show that their

work at Sassy’s satisfied the economic realities test,

then it is no obstacle to their retaliation action that

any misclassification claim is time-barred.” App. 14a.

In summary, the Ninth Circuit removed a guardrail

subjecting only an “employer” to a retaliation lawsuit

and, at the same time, bolstered a plaintiff’s

opportunities

to

retroactively

re-classify

an

employment relationship on time-barred claims.

The panel remanded with instructions for the

district court to determine whether Respondent was

an employee of Sassy’s under the economic-realities

test and, if so, whether Petitioner’s cancellation of the

single Sinferno performance constituted actionable

retaliation under the Act. App. 14a-16a.

13

REASONS FOR GRANTING THE PETITION

This case presents a clean and outcomedeterminative question regarding the scope of private

retaliation liability under the FLSA. The material

facts are undisputed. The statutory provisions are

fixed. The question is purely legal. And the courts of

appeals are badly divided.

The Ninth Circuit stands alone in holding that

a plaintiff with a time-barred misclassification claim

may sue a non-employer defendant under the Act. By

contrast, the Second, Fourth, and Sixth Circuits have

concluded that the Act’s private right of action

remains confined to the employment relationship

Congress repeatedly referenced in 29 U.S.C. §§ 203(d),

215(a)(3), and 216(b). That conflict concerns the

threshold question of who may be sued under what

circumstances in a private FLSA retaliation action.

The decision at issue here departs from the

statutory guardrails Congress enacted. Section

215(a)(3) protects “any employee.” Section 216(b)

authorizes a private action only against an “employer.”

And § 203(d) defines employer to include persons

acting “directly or indirectly in the interest of an

employer in relation to an employee.” Those provisions

establish interlocking limits: the plaintiff must be an

employee, and the defendant must be an employer

within the employment relationship.

The Ninth Circuit here removed those plain text

constraints. The panel held that a defendant may act

“indirectly in the interest of an employer” without an

agency relationship and without acting on behalf of

the employer. It further concluded that conduct

satisfies the statute so long as it could be potentially

viewed as serving some interest of a prior employer.

In doing so, the court reduced the statutory definition

14

of “employer” to a generalized inquiry untethered from

the employment relationship itself.

Unaddressed, that interpretation expands

private retaliation liability beyond the boundaries

Congress established. It permits claims against third

parties who never employed the plaintiff, based solely

on an asserted connection to a prior employer’s

interests. That construction exposes businesses and

individuals to retaliation suits despite the absence of

any contemporaneous employment relationship.

The Ninth Circuit also loosens the rule limiting

the right to sue on FLSA retaliation claims to an

“employee.” Here, Respondent’s wage-and-hour claims

are time-barred. The Ninth Circuit nevertheless held

that a plaintiff may litigate employee status years

after the working relationship ended and the statute

of limitations prohibits continuing wage claims or

recovering damages from the alleged employer. The

plaintiff may (and sometimes must) allege a casewithin-a-case against a potential past employer, solely

to revive an otherwise expired retaliation claim

against a different non-employer entity. The statute of

limitations exists to mitigate the difficult guesswork of

piecing someone’s past work history together years

later. That reasoning for a firm time limit to bring

claims

applies

equally

to

determining

misclassification questions. Regardless, the Act

simply does not contemplate such a free-standing

cause of action.

The resulting rule departs from Congress’s decision

to confine private suits to “employers” and risks

transforming the FLSA’s retaliation provision into a

broad vehicle for litigation against unaffiliated third

parties with no obvious guardrails. Because the circuit

courts are divided and the issue implicates the scope

of federal statutory liability on a highly utilized FLSA

15

framework, expediting a resolution to the circuit split

is imperative to prevent undue harm and confusion.

A. The Ninth

Optional

Circuit

Rule:

“Employer”

In Arias v. Raimondo, 860 F.3d 1185 (9th Cir.

2017), the Ninth Circuit took the step of extending

private FLSA retaliation liability beyond direct

employers. The decision put the Ninth Circuit at odds

with several other circuits to consider the matter. The

year after Arias, the Sixth Circuit considered the same

issue—whether an employee could bring FLSA

retaliation claims against a non-employer—and took

the opposite position. See Diaz v. Longcore, 751 F.

App’x 755, 758–59 (6th Cir. 2018). No other appellate

court has adopted Arias’s reasoning.

In Arias, the Ninth Circuit addressed whether

an employer’s attorney could be held personally liable

for retaliation under the Fair Labor Standards Act

(“FLSA”). 860 F.3d 1185 (9th Cir. 2017). The employee

had filed state wage-and-hour claims against his

employer. Id. at 1187. The employer’s attorney then

contacted

U.S.

Immigration

and

Customs

Enforcement in an alleged effort to have the employee

detained and deported before trial. Id. at 1187–88. The

district court dismissed the retaliation claim, holding

that because the attorney was not the plaintiff’s

“employer,” he could not be liable under 29 U.S.C. §

216(b). Id. at 1189. The Ninth Circuit reversed. The

panel noted that § 215(a)(3) makes it unlawful for “any

person” to retaliate, and § 203(d) defines “employer” to

include “any person” so long as they are “acting

directly or indirectly in the interest of an employer in

relation to an employee.” 860 F.3d at 1190–92 (quoting

29 U.S.C. §§ 203(d), 215(a)(3). The court held that the

anti-retaliation provision extends beyond actual

16

employers and that courts should not import the

“economic realities” control test into the retaliation

context. Id. at 1190–93.

The panel correctly framed Arias as a case

involving extraordinary and unique allegations. The

attorney at issue allegedly sought to use federal

immigration enforcement to derail a pending wage

action. Id. at 1187–88. The court stressed the FLSA’s

“remedial and humanitarian” purpose. Id. at 1192

(quoting Tenn. Coal, Iron & R.R. Co. v. Muscoda Local

No. 123, 321 U.S. 590, 597 (1944)). It relied on Title

VII precedent to conclude that retaliation need not be

limited to traditional employment actions. Id. at 1191–

92 (citing Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006)). Still, the decision had its limits.

Arias

involved

an

undisputed

employment

relationship and an ongoing wage dispute. The alleged

retaliator was the employer’s retained counsel charged

with defending the FLSA lawsuit.

Arias constituted a big step away from the

traditional understandings of who—besides an actual

employer—could be personally liable for an FLSA

retaliation claim.

The decision in this case extends the unique and

specific holding of Arias far further. App. 1a-18a.

Unlike Arias, this case involves no agency

relationship, no ongoing wage claim, and no action

taken on behalf of an employer in the employment

relationship. The Ninth Circuit here nonetheless

allowed a retaliation claim to proceed against a nonemployer who never employed Respondent and did not

act in any apparent way as an employer’s agent. Id. at

10–14. The panel acknowledged that this decision and

Arias create an open conflict with other circuits. App.

13a fn. 1, citing Kim v. Lee, 576 F. Supp. 3d 14, 27–28

(S.D.N.Y. 2021), aff’d, No. 22-61, 2023 WL 2317248 (2d

17

Cir. Mar. 2, 2023). The breadth and consequences of

that conflict, however, are greater than the Ninth

Circuit suggested in the opinion.

The Ninth Circuit then went further still.

Although it acknowledged that a plaintiff must be an

“employee” to bring an FLSA retaliation claim,

Respondent had not established any employment

relationship with any defendant. To overcome that

defect, the panel permitted Respondent to reopen

time-barred misclassification claims against a

previously dismissed entity, Sassy’s, solely to

establish the employment element necessary to

pursue a retaliation claim against Petitioner. App. 8a10a. With that holding, the court effectively held that

a non-employee of any party could maintain a

retaliation claim against a defendant who is not an

alleged employer to plaintiff in any way.

Having eliminated employer status, agency,

and operational control as prerequisites, the Ninth

Circuit sought to articulate a new limiting principle

for retaliation claims. It focused on the definition of

“employer” and its reference to any person acting

“directly or indirectly” in the interest of an employer.

§ 203(d). The Ninth Circuit reasoned that acting

“directly” in the employer’s interest— such as the

attorney’s conduct in Arias, was straightforward. But,

the panel held that acting “indirectly” must “capture

some lesser nexus” between the defendant and the

employer. App. 11a (emphasis original). The court

further held that this employment nexus need not

have “an agency relationship with the actual employer

or the conferral of any direct benefit to the employer.”

Id.

The court identified no boundary for what

constitutes a “lesser nexus.” It offered no example of

conduct that would fall outside the rule and cited no

18

statutory interpretation principles, legislative history,

or precedent from the FLSA’s 88-year history to

support its expansion of the Act’s longstanding terms

authorizing private causes of action for retaliation.

What is more, the Ninth Circuit’s interpretation

conflicts with this Court’s precedent. In Falk v.

Brennan, 414 U.S. 190 (1973), the Court explained

that § 203(d) reaches persons who act on behalf of the

employer in the employment relationship itself: those

who hire, supervise, pay, or otherwise exercise

substantial control over working conditions. Falk, 414

U.S. at 192–95. The defendant in Falk qualified as an

employer because he exercised “substantial control of

the terms and conditions of the work.” Id. at 195.

Nothing in Falk suggests that § 203(d) extends to

individuals who do not act on the employer’s behalf in

the employment relationship, or who exercise no

economic or managerial control.

Prior to Arias, Ninth Circuit precedent seemed

to follow this Court’s reasoning in Falk. It held that

employer status turns on whether the individual

exercises “control over the nature and structure of the

employment relationship,” or asserts “economic

control” over it. Boucher v. Shaw, 572 F.3d 1087, 1091

(9th Cir. 2009) (quoting Lambert v. Ackerley, 180 F.3d

997, 1012 (9th Cir. 1999) (en banc). Those decisions

treat “directly or indirectly” as expanding liability

within the employment relationship—not eliminating

the requirement that the defendant act on the

employer’s behalf.

The Ninth Circuit’s expanded rule deepens the

circuit conflict and dramatically broadens FLSA

exposure within the largest circuit court in the

country. As discussed, infra, most other courts have

rejected this expansion. Even some district courts

within the Ninth Circuit have declined to follow Arias.

19

See Cramton v. Grabbagreen Franchising LLC, No.

CV-17-04663-PHX-DWL, 2019 WL 7048773, at *25 (D.

Ariz. Dec. 23, 2019), aff’d, No. 21-17122, 2023 WL

5036489 (9th Cir. Aug. 8, 2023); Evans v. Dart, No. 20

C 2453, 2021 WL 2329372, at *11 (N.D. Ill. June 8,

2021); Leo v. Sarasota Cnty. Sch. Bd., No. 8:16-CV3190-T-30TGW, 2019 WL 2453440, at *9 (M.D. Fla.

Feb. 7, 2019).

The Ninth Circuit rule dismantles one of the

Act’s core limiting principle and replaces it with no

discernible standard, just a “nexus,” leaving private

FLSA retaliation liability untethered to the

employment relationship and without meaningful

constraint.

B. The Majority Rule: 216(b) is for Employers

Only

In direct contrast to the Ninth Circuit, the

Second, Fourth, and Sixth Circuits adhere to the

plain language of § 216(b) and limit private FLSA

retaliation actions to defendants who qualify as an

“employer.” Those courts reject the view that the

definition of employer in § 203(d) (relating to “directly

or indirectly in the interest of an employer”) overrides

or renders superfluous Congress’s deliberate use of

the term “employer” in section 216(b). Instead, they

read the provisions together to preserve the statutory

boundary Congress drew between unlawful

retaliation by “any person” and private civil liability

imposed only on employers.

The most analogous decision is Dellinger v.

Science Applications International Corp., 649 F.3d

226 (4th Cir. 2011). There, the Fourth Circuit held

that the FLSA’s private retaliation remedy under 29

U.S.C. § 216(b) is limited to an “employer” and does

not extend to entities that never employed the

20

plaintiff. There, the plaintiff alleged that a

prospective employer rescinded a job offer after

learning that she had previously filed an FLSA wage

claim against a different employer. Id. at 228. The

Fourth Circuit affirmed dismissal, explaining that

although § 215(a)(3) broadly prohibits retaliation by

“any person,” § 216(b) authorizes a private suit only

against an “employer,” and § 203(d)’s definition

reaches only those acting on behalf of an employer

within the employment relationship. Id. at 230–31.

Because the defendant had never employed the

plaintiff, the statute did not permit a private

retaliation action.

The parallels here are on point. As in Dellinger,

Respondent seeks to impose FLSA retaliation

liability on a separate business entity that never

employed them, based on an alleged adverse decision

made after learning of prior or pending FLSA

litigation against a different employer. In Dellinger,

the defendant declined to hire the plaintiff; here,

Petitioner cancelled a brief performance engagement.

In both cases, the alleged retaliation arose from an

independent business decision made outside any

employment relationship. And in both cases, the

limitations of § 216(b) forecloses a private retaliation

claim.

Dellinger leads in confirming the majority rule:

§ 216(b) does not authorize a free-floating retaliation

cause of action against third parties who never

employed the plaintiff. The “directly or indirectly in

the interest of an employer” language of § 203(d)

expands who may qualify as an employer within an

employment relationship; it does not erase the

requirement that the defendant be the plaintiff’s

employer in the first place. By contrast, the Ninth

Circuit’s rule would invite the type of claim the

21

Fourth Circuit declined. That is, private retaliation

liability against a separate business actor based

solely on a business decision made after learning of

prior FLSA activity.

The Second Circuit recently affirmed that

understanding in Kim v. Lee, 576 F. Supp. 3d 14, 25

(S.D.N.Y. 2021), aff'd, No. 22-61, 2023 WL 2317248 (2d

Cir. Mar. 2, 2023). As in Arias, the plaintiff sought to

assert FLSA retaliation claims against the employer’s

attorney—there, based on the attorney’s filing of

counterclaims in response to the plaintiff’s wage suit.

Id. In considering a motion to dismiss by attorney

defendant, the district court noted that FLSA

retaliation claims under § 216(b) must be against an

“employer.” It then turned to the definition of

employer under § 203(d).

The district court in Kim did not cite Arias.

Rather, it relied on this Court’s reasoning in Falk v.

Brennan to reach the opposite conclusion and

determine that the definition encompasses only those

who act on behalf of the employer within the

employment relationship itself. Id. at *2526, citing Falk v. Brennan, 414 U.S. 190, 192–95 &

n.4, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973). That is, the

“directly or indirectly” language relates to actions

involving the employment relationship, not possible

third-party actions outside of the employment context.

The Second Circuit affirmed on different grounds, but

without disturbing the district court’s reasoning on

that issue. Id.

The Sixth Circuit likewise declined to adopt the

Ninth Circuit’s expansion of employer liability in

Arias. In Diaz v. Longcore, 751 F. App’x 755, 758–59

(6th Cir. 2018), the plaintiff sought to bring FLSA

retaliation claims against the attorneys representing

his employer in a wage dispute. Id. at 757. The court

22

underscored that Congress “knows how to create

broader liability when it wishes to,” and did so in §

216(a) by imposing criminal liability on “any person.”

Id. at 759. The court further explained that § 203(d)’s

definition “expands, but does not purport entirely to

displace” the ordinary meaning of employer. Id. at 757.

The court continued “[i]n contrast to the way the FLSA

comprehensively defines most of its statutory

terms…[it] merely adds another category of

“person[s]” to those ordinarily considered employers.

The plaintiff in Diaz urged the court to

recognize a broader definition of employer,

presumably akin to the Ninth Circuit. Id. In response,

the panel cited this Court’s decision in Encino Motors,

for the proposition that “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, 200 L.Ed.2d 433 (2018) (internal quotation and

citations omitted). The panel then quoted this Court in

describing the challenge of reading statutory

definitions in isolation, finding that “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.” Id. The Diaz court then cited

this Court’s decision in Kasten, for the proposition that

“[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.” Id. citing Kasten v.

Saint-Gobain Performance Plastics Corp. 563 U.S. 1,

at 7 (2011).

The Diaz court also grounded its holding that

the definition of employer in § 203(d) does not expand

liability to non-employers by noting that it serves more

23

to define who may be liable within the employment

relationship, explaining:

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,

94 S.Ct. 427, 38 L.Ed.2d 406 (1973) (emphasis

original). In summary, based on its reliance on this

Court’s precedent, Diaz sided with the majority of

circuits holding that the FLSA’s definition of employer

relates exclusively to individuals acting on behalf of

the actual employer.

Put another way, the seemingly broad

definition of employer contained in § 206(d) does not

create a new class of non-employer defendants for

retaliation claims. Rather, it serves to structure who

may be personally liable under the statute. For

example, the Fair Labor Standards Act permits

individual liability because Congress defined

“employer” to include “any person acting directly or

indirectly in the interest of an employer in relation to

an employee.”. § 203(d). That language intends to

capture owners, officers, and managers who exercise

operational control and act on behalf of the actual

24

employer—whether their authority is exercised

directly or through delegation.

The phrase “directly or indirectly” thus expands

liability vertically within the employer’s enterprise; it

ensures that those who control the employment

relationship cannot evade responsibility by operating

through layers of management. It does not expand

liability horizontally to unaffiliated third parties who

never employed the plaintiff and did not act in the

interest of the plaintiff’s employer in relation to that

employee. Reading § 203(d) otherwise would sever the

definition from the relational limitation embedded in

the statute and collapse the distinction Congress

preserved in § 216(b), which authorizes private suit

only against an “employer.”

In summary, every circuit court that has

considered the matter—besides the Ninth Circuit—

has adhered to this Court’s precedent and

interpretation of the statute to limit the definition of

“employer” to individuals within the employment

relationship. A clear majority of courts consider that

the reasonable approach. The importance of this

circuit split and litigious conflict it will bring cannot

be overstated.

Whether § 216(b) permits suits against nonemployers determines the outer boundary of civil

exposure under one of the Nation’s most frequently

litigated statutes. In three circuits, liability is confined

to employers acting within the employment

relationship. In the Ninth Circuit, it is not. That

geographic divergence creates different federal rights

and liabilities under identical statutory text. This

Court’s review and decision on the matter is needed.

25

C. Time Barred Misclassification Claims

Based on the Ninth Circuit’s decision, a plaintiff

may pursue a retaliation claim even after losing,

through the passage of time, any opportunity to

challenge their alleged classification or recover wages.

In effect, the ruling permits a plaintiff to reopen

litigation against a dismissed party solely to allege

misclassification, for the limited purpose of pursuing a

retaliation claim against an entirely different

defendant. That is precisely what occurred here.

Respondent did not appeal the dismissal of their

misclassification claims. Those claims are now barred

by the applicable statute of limitations.

The FLSA establishes a uniform limitations

period for private actions. See 29 U.S.C. § 255(a).

Under § 255(a) “every such action shall be forever

barred unless commenced within two years after the

cause of action accrued, except that a cause of action

arising out of a willful violation may be commenced

within three years after the cause of action accrued.”

Once that period expires, the claim is extinguished.

The Act does not contemplate a regime under which

time-barred

misclassification

allegations

may

nonetheless be litigated years later to establish

employee status for some other purpose.

Here, the district court concluded that

Respondent’s misclassification and wage-and-hour

claims against Sassy’s were time-barred. App. 37a.

The court further found that the undisputed evidence

showed Respondent was not an employee of Petitioner

or Dante’s at the time of the alleged retaliation. Id. On

that basis, the court entered final judgment

dismissing all federal claims with prejudice. App. 22a23a.

26

The Ninth Circuit reversed by holding that the

time-barred status of Respondent’s misclassification

claims did not preclude the district court, on remand,

from determining, whether Respondent’s past work at

Sassy’s satisfied the “economic realities” test for

employee status. App. 8a. That determination—

concerning work performed entirely outside the

limitations period—is now required solely to assess

whether Petitioner’s cancellation of a single fiveminute performance at an unrelated venue could

constitute actionable retaliation. Id.

The decision seemingly conflicts with the court’s

holding in Arias itself. Arias expressly rejected

importing the “economic control” or “economic

realities” test into the retaliation context when

determining who may be held liable under § 203(d).

Arias, 860 F.3d at 1190. Instead, Arias emphasizing

that retaliation is “a different animal altogether,”

designed to ensure that workers may invoke the legal

process without interference. Id. (citing Robinson v.

Shell Oil Co., 519 U.S. 337, 346, 117 S. Ct. 843, 136

L.Ed.2d 808 (1997)). For that reason, Arias declined to

apply wage-and-hour liability standards to retaliation

claims.. Id.

The panel’s decision here does the opposite.

After relying on Arias to expand the class of potential

retaliation defendants beyond employers, it required

the district court to apply the economic-realities test,

reserved by Arias for wage-and-hour claims, to

adjudicate a time-barred misclassification dispute.

That move collapses the distinction Arias itself sought

to draw and forces courts to litigate expired

employment relationships solely to sustain a novel

retaliation theory against non-employers.

Because no precedent supports such a claim,

the panel was required to construct a new legal

27

framework. No authority under the FLSA suggests

how a non-employee may pursue a retaliation claim

against a non-employer, much less by resurrecting

time-barred misclassification allegations. Rather than

clarifying existing boundaries, the court created an

entirely new structure to support its expansion of

liability.

The panel justified its approach by noting that

§ 215(a)(3) protects employees from retaliation for

“fil[ing] any complaint,” regardless of whether the

complaint ultimately succeeds. App. 15a-16a. But

that principle addresses the form of protected activity,

not the temporal limits Congress imposed on

adjudicating the underlying employment relationship.

Nothing in the statute authorizes courts to adjudicate

claims Congress has made conclusively time-barred.

The Ninth Circuit’s reliance on Kasten v. SaintGobain Performance Plastics Corp., 563 U.S. 1, 131 S.

Ct. 1325, 179 L. Ed. 2d 379 (2011), is misplaced.

Kasten held that oral complaints may qualify as

protected activity under § 215(a)(3). Kasten, 563 U.S.

at 14 (holding “that a fair notice requirement does not

necessarily mean that notice must be in writing.”).

This Court did not consider—let alone endorse—the

resurrection of expired wage-and-hour claims to

establish employee status years later for the purpose

of retaliation liability. The Ninth Circuit’s reliance on

Kasten extends that decision well beyond its holding.

The practical consequences of the Ninth

Circuit’s rule are significant. It requires defendants to

litigate stale employment relationships long after

Congress decided they should be extinguished. It

deprives third parties of repose by tethering ordinary

business decisions to time-barred allegations

involving different entities and different venues. And

it creates incentives for plaintiffs to repackage expired

28

wage-and-hour claims as retaliation predicates

against any non-employer third-party alleged to have

taken adverse action.

This Court’s review is warranted to restore the

limits Congress enacted. The FLSA’s statute of

limitations reflects a legislative judgment about

finality and repose. The Ninth Circuit’s decision

requires

courts

to

adjudicate

time-barred

misclassification issues as a prerequisite to imposing

retaliation liability—an outcome the statute does not

authorize.

D. Expanding Conflict and Exposure

Although a deep and persistent circuit conflict

is reason enough for this Court’s intervention, the

importance of the questions presented here

independently warrants review. See Sup. Ct. R. 10.

Under the Ninth Circuit’s rule, a venue owner,

contractor, lender, or vendor may face federal

retaliation liability for declining to do business with a

current or former FLSA litigant—despite never

employing that individual.

This case presents a clean vehicle for resolving

both questions presented. The issues are purely legal,

dispositive, and preserved. The district court entered

final judgment on the merits, and the Ninth Circuit

reversed solely as a matter of statutory interpretation.

There are no jurisdictional defects, alternative

grounds, or factual disputes that would impede

review.

Absent

review,

the

Ninth

Circuit’s

interpretation will govern FLSA retaliation claims

across the Nation’s largest circuit, exposing businesses

and individuals to private liability beyond the limits

Congress enacted.

29

E. Conclusion

The FLSA’s anti-retaliation provisions reflect

deliberate congressional choices about the scope of

private enforcement. Congress limited who may be

sued for retaliation by authorizing private actions only

against an “employer,” and it limited what may be

litigated by imposing a statute of limitations that

forecloses adjudication of stale wage-and-hour claims.

The decision below disregards both limits. It

extends private retaliation liability to persons who

never employed the plaintiff and did not act on an

employer’s behalf. And it requires courts to adjudicate

a misclassification theory dismissed as time-barred.

These departures stem from an interpretive

approach that treats statutory boundaries as

malleable rather than controlling, an approach that

conflicts with decisions of other courts of appeals and

with this Court’s repeated instruction that remedial

statutes must be enforced according to their text and

structure.

This Court’s review is necessary to restore the

limits Congress enacted, resolve the circuit conflicts,

and provide clear guidance on the scope of private

retaliation liability under the FLSA.

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

C. Robert Steringer

Counsel of Record

Anthony Kuchulis

Dunn Carney LLP

851 SW Sixth Ave, Suite 1500

Portland, Oregon 97204