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Mitigation of Damages

Mitigation of DamagesIn employment discrimination cases, the issue of damages is often central in our client’s minds.  A successful plaintiff in such cases can receive back pay, front pay, emotional distress damages, punitive damages, interest, compensatory damages, statutory damages, legal fees and costs, etc.

Back pay is the amount of wages that a plaintiff may recover from the date of termination (or adverse employment action) to the date of verdict.  Front pay is a forward looking projection of the amount of wage damages that a plaintiff receives from the date of verdict to some future date.

For a plaintiff to try to protect their claim to wages, they should take steps to “mitigate” their damages.  Although, it is certainly the case that a wronged plaintiff is often not to be blamed for the loss of their job, this is not to say that they may not have obligations to protect their claim for a loss of wages.

The consequences of not mitigating damages can be severe.  A plaintiff’s recovery may be reduced or even eliminated if the plaintiff fails to make reasonable efforts to look for work.

Mitigation of damages takes many different forms.  One such form is the plaintiff’s efforts to seek comparable employment following the wrongful termination.  Terminated employees should consult in a timely manner with employment counsel about what they need to do to maintain proof of their job search.  Oftentimes, a thorough and detailed job log with numerous entries is extremely helpful.  Back up to the job log in the form of applications, newspapers, emails that are sent out, etc. is also good to maintain.

If a plaintiff does not mitigate damages, then the former employer can use this as an affirmative defense. Under the doctrine of mitigation, the defendant employer bears the initial burden of demonstrating that comparable employment opportunities were available and that the plaintiff either failed to search for such opportunities or refused such opportunities when offered.  The courts frame the issue of a plaintiff’s duty to mitigate in terms of “reasonableness.” In deciding whether a plaintiff acted reasonably in rejecting or not pursuing a particular job opportunity, courts will typically consider factors such as:  job duties, skills required, compensation, work atmosphere, location, and hours.

If the court determines that a plaintiff failed to mitigate wage loss, it may limit or reduce the award of damages.  For instance, a court could significantly reduce a plaintiff’s damages if the plaintiff removes himself from the job market entirely or fails to enroll in any college or training courses.  Similarly, a plaintiff’s back wages and future lost earnings can be reduced where a plaintiff fails to keep appointments for job interviews, or appears at an interview in unsuitable attire.  In the case of Talman v. Board of Trustees of Burlington County College, 169 N.J. Super. 535, 540–541 (App. Div. 1979), cert. denied 81 N.J. 407 (1979), the court found that an individual failed to mitigate damages, and was not entitled to back pay, where her job search consisted solely of talking to a friend’s husband on one occasion and to three or four people informally, regarding employment opportunities.  It is important to keep in mind, though, that plaintiffs only have to make reasonable efforts to mitigate their damages.

What is the takeaway?  If you are wrongfully terminated, here are some things you can do to satisfy your duty to mitigate damages:

  • Keep a daily record of all your job search efforts in an organized and chronological fashion.
  • Review job postings in the newspaper and online, every day.
  • Attend job fairs and networking events.
  • Ask friends, family or former colleagues whether they know of any job openings.
  • Submit job applications (and keep copies of them).
  • Keep copies of any rejection letters or emails.
  • Register for on-line employment services.
  • Consider using an executive search firm.

 

By Sally A. Sattan, Esq. and Ty Hyderally, Esq.
Hyderally & Associates, P.C.

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