Court Finds Retaliation Based on When Employee Was Replaced

Retaliation Green Road Sign on Dramatic Blue Sky with Clouds.

To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

There was no dispute that Mr. Goldsmid was entitled to overtime pay when he worked more than 40 hours per week. However, there were at least 12 weeks in which Mr. Goldsmid worked overtime but was not compensated for it.

Although Mr. Goldsmid initially did not realize he was entitled to receive overtime pay, in February 2011 the company’s accountant provided him a factsheet from the United States Department of Labor that explains the Fair Labor Standards Act (FLSA)’s overtime requirements. Mr. Goldsmid provided copies of that document to some of his coworkers and his boss. In March 2011 he told one of the owners of the company he believed the company had decreased his pay when it started paying him a salary. Approximately three months later, Lee Rain fired Mr. Goldsmid, claiming he was disruptive and his job performance was poor. Mr. Goldsmid then filed a lawsuit claiming his employer failed to pay him overtime in violation of the FLSA, and retaliated against him in violation of the FLSA and New Jersey’s whistleblower law, the Conscientious Employee Protection Act (CEPA).

Lee Rain eventually filed a motion for summary judgment, asking the court to dismiss Mr. Goldsmid’s case. Among other things, the company argued there was not enough evidence to prove it fired Mr. Goldsmid because he objected about a violation of the FLSA, rather than because of his job performance.

Previous cases have recognized that when an employee attempts to rely solely on evidence of the timing between his legally protected objection and the company’s decision to fire him, he has to show the timing is so close that it is “unusually suggestive” of retaliation. Otherwise, timing alone is not enough to prove a retaliation claim.

The judge explained that the three months between Mr. Goldsmid’s complaint to his boss and the company’s decision to fire him was not “unusually suggestive” and therefore was insufficient to prove his case. However, she also noted that the company hired two new employees to work in its warehouse, and started their jobs on the day after Lee Rain fired Mr. Goldsmid. Although the company claimed it decided to hire those employees a month before it fired Mr. Goldsmid because it was getting ready for the busy summer season, the court ruled that a jury could find it really hired them to replace Mr. Goldsmid and delayed firing him until his replacements were ready to start their jobs. Based on that, the judge concluded a jury could find Lee Rain retaliated against Ms. Goldsmid in violation of the FLSA and CEPA. Accordingly, it denied the company’s motion for summary judgment.