Your Legal Rights Were Violated—But You Still Have to Mitigate Your Damages
If an employee is unfairly separated from work, the doctrine of damages mitigation still requires the employee to search for a new job to lessen the employee’s lost wages. To ensure that a Plaintiff does not “abandon [their] job search and continue to recover back pay,” with “reasonable diligence” a Plaintiff must look for “comparative employment” to receive back pay awards or front pay awards from their previous employer. Put simply, following termination an individual is required to search for employment by applying for multiple job opportunities that they are qualified for within their field.
Reasonable diligence can include applying to positions via the internet, speaking with friends or family members about open positions in the area, hand delivering resumes to businesses, consulting classified ads, or visiting state unemployment offices to inquire about employment.
Comparative employment depends on the case’s jurisdiction, but in general would be a new position with opportunity for promotion, comparable job responsibilities, equivalent or higher compensation, similar working conditions, and a position with a similar status.
A Plaintiff is not required to accept a demotion, go into another line of work, or take a “demeaning” position in order to mitigate damages. However, if a Plaintiff rejects a job that is comparative to their previous position, then they run the risk of forfeiting damage compensation from their previous employer.
Mitigating damages does not exclusively include searching for employment until a new position is found. After around six months to a year of searching for comparative employment, an individual may opt to return to school or start a business. To prove failure to mitigate, an employer will have to show the courts that starting a business was not a comparative alternative to finding an equivalent position.
An Employer can file an “affirmative defense” to prove that a Plaintiff did not properly attempt to mitigate damages for a variety of reasons. A failure to mitigate can be not looking for employment, finding new employment and quitting in a short period of time, or being discharged from a new position for misconduct.
The employer bears the burden of proof to show the court that a Plaintiff did not use “reasonable diligence” when attempting to mitigate damages and has the right to request any documentation regarding an individual’s job search. Documentation could include job application confirmation emails, rejection letters, resumes, or applications.
If you believe that you were unfairly terminated or have questions about mitigating damages in an employment case, Hurwitz Law can help! Please reach out to our firm at [email protected] or call (844)-HURWITZ.