The Employee’s Duty to Mitigate Damages in a Wrongful Termination Case
Plaintiffs who pursue employment claims have a duty to reduce damages for lost wages by exercising reasonable diligence to find comparable employment after an alleged wrongful termination. Employees who fail to exercise reasonable diligence to find comparable employment—or who refuse comparable employment offers—are likely to have any potential award of damages for lost wages reduced or eliminated. If you are considering pursuing a wrongful termination claim against your former employer, you should begin the job search immediately after your employment has ended.
Exercising reasonable diligence does not necessarily require plaintiffs to secure comparable employment. Rather, it requires plaintiffs to remain available for employment opportunities and make reasonable efforts to obtain a comparable job opportunity. Reasonableness if often measured by an individual plaintiff’s characteristics and the job market—i.e., what is reasonable for a 64-year-old plaintiff with highly specialized skills in a tough job market will be different than what is reasonable for a 20-year-old plaintiff without a specialized skill set in a good job market. Generally, it takes longer for a plaintiff with specialized skills to find comparable employment.
Mitigating Damages DOs and DON’Ts
DO start the search for work as soon as possible: Any unreasonable delay allows the employer to argue that reasonable diligence was not exercised and escape liability for lost-wage damages that would have otherwise accrued during the time frame reasonable efforts were not made.
DO document all job-search efforts. Keep detailed records of the following:
Dates of search efforts;
Time spent seeking employment opportunities;
Platforms utilized (i.e., Indeed, LinkedIn, referrals, etc.);
Copies of cover letter(s) and resume(s) submitted;
The criteria used during searches (i.e., types of positions sought, the geographic limitations of any search, etc.);
All applications or resumes submitted – including the name of the potential employer, the date of submission, the position applied for, and the rate of pay (if known);
Copies of job postings replied to;
All communications with potential employers – including email correspondence, phone calls/meetings details, interview details, and offer letters and/or rejection notices;
All job offers – including the name of the potential employer, the date of the offer, the position offers, the rate of pay, and, if denied, the reason for denial.
DO consider documenting your job search efforts in a diary or log (table format can be helpful) that makes it easy to update and include relevant information in real time.
DO consider working with a recruiter or outplacement/vocational expert;
DON’T think enrolling in school or professional training satisfies your duty to mitigate damages. Full-time students are not typically available for full-time work. Unless you have exhaustively searched for reasonable comparable employment without success or school will not interfere with your job search efforts, enrolling in school will likely be seen as a failure to exercise reasonable diligence.
DON’T think you can just accept a lower paying job that is not comparable to your previous position and quit the job search. While you may be inclined to accept the first job offer that comes your way because you need income, you should continue exercising reasonable diligence to find comparable replacement work that would mitigate more of your lost wages.
DON’T be afraid to take a higher paying job. Finding a job that pays an equal or higher amount simply stops lost wages from continuing to accrue. Earning more from your new employment opportunity does not reduce the lost wages you already accrued prior to the start of your replacement job. And turning down such an offer will surely be seen as a failure to exercise reasonable diligence.
