Ty Hyderally, Esq. and Faatimah Jafiq, Esq.

August 13, 2025

When calculating damages, front pay is a category often overlooked. Front pay is typically awarded in a discrimination case where reinstatement to the employee’s former role is impossible. The goal of front pay is to make the plaintiff whole by closing the financial gap until the plaintiff finds a comparable job for a certain time period from the date of judgment going forward.[1] In contrast, back pay is a category that refers to lost wages from the date of the adverse action up to the date of the judgment.

In New Jersey, front pay can be awarded in discrimination cases (involving violations of the Law Against Discrimination – LAD) and in certain CEPA cases (Conscientious Employee Protection Act).

There are multiple reasons reinstatement may prove to be impossible.  For example, it is very possible that the former work environment was a hostile one and forcing the employee to return to such an environment would be bad for both the employee and the employer.  Further, it is conceivable that the employer eliminated the position, for various reasons, after the employer terminated the employee. A common reason for not wanting reinstatement very often comes from the employer’s concerns/fears.  The employer is concerned that if they reinstate an employee who sued or threatened to sue them with a claim of discrimination/harassment/whistleblower violation, it will be very difficult to discipline that employee.  The employer is also concerned about the message it sends to the workforce tot have that terminated employer return into the workforce.  Another cause of concern for the employer is considering the impact reinstating an employee is the impact it has on the management employee(s)who were involved in disciplining and/or terminating the employee who sued the company.  Of course, this concern is further heightened if individuals were named in the Complaint as individual defendants and they still worked at the company.

At trial, the plaintiff is burdened with proving that they appropriately mitigated future damages by seeking appropriate employment.[2]  But the real-life burden is a common law requirement of what is needed to put front wages before the Court.  When making an argument for front pay, it is necessary to hire an expert accountant to testify on behalf of the plaintiff. The court in Quinlan v. Curtiss-Wright Corp held that it was improper to request that the defendant to speculate about the future job market or other factors regarding the plaintiff’s health or ability to take an equivalent job.   This means that a plaintiff must bear the cost of hiring an expert to compute front wage valuations and tax implications during the pendency of the litigation.  This is a significant additional cost.  As we all know, most of these cases settle pre-litigation.  Thus, it is an issue you have to fully discuss with your client if you are representing a plaintiff.

When calculating front pay, the courts tend to consider factors such as how long the employee worked at the job, the time it will take for the employee to find a comparable job, the employee’s age, and the average length of time it takes for others to find a similar job. The onus is on the employee to mitigate their damages by applying for new, comparable jobs from the time they separate from their former employer (or a reasonable time soon after). When the employee begins their job search, they should keep a detailed log of the company they apply to, the position they apply for, and the date of which they applied.  However, at trial, the burden is on the Employer to prove that the Employee failed to mitigate his/her damages.

Since calculating front pay is not as straightforward as calculating back pay, it is usually up to the judge to determine the amount awarded.

If you have any questions regarding your rights as an employee, you should seek out an experienced attorney who concentrates in employment law. Our firm has concentrated in employment law for over twenty-two (22) years!

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[1] EEOC Fact Page on Front Pay: https://www.eeoc.gov/federal-sector/front-pay

[2] Quinlan v. Curtiss-Wright Corp., 425 N.J. Super. 335 (App. Div. 2012).