Mitigation

1. What does “mitigation” mean?

Whenever anyone has a legal claim against another, they have a duty to mitigate damages. That means you have to do what you can to minimize the damages. If you are hurt in a traffic accident, you have to take reasonable steps to get your injuries treated promptly. If you refuse to get medical help, and that refusal caused your injuries to get worse, the other driver will not be liable for the injuries you could have prevented. Similarly, if a warehouse ships lemons instead of apples, the grocer has to do the best they can with the lemons to lessen the claim against the warehouse. Lemonade anyone?

2. Do I have to look for a job once I’ve lost mine?

Yes. In employment cases, you must make a good faith effort to reduce the money that you have lost in wages because your former employer caused you to lose your job. As a discharged worker, you have two obligations:

• to make reasonable efforts to find employment; and,
• to accept employment of a ‘like nature,’ if offered.

If the other side can convince the judge or jury that you did not do what was reasonable, you could win your case, but still be awarded only one dollar (called “nominal damages”). However, if you did reasonably look for other work, you will not be denied damages for lost wages just because your efforts were unsuccessful and even if your efforts could have been “more exhaustive.”

3. How does mitigation affect the damages I can recover?

When calculating the amount of back and front pay that you can be awarded in an employment case, the court must

deduct

 any compensation earned by working from the date of the employer’s unlawful action until the date of the verdict. Also, if you are awarded compensation for loss of future earnings, the court must

deduct

 any compensation you are likely to earn from the date of the verdict until the anticipated end of your work life.

However, just because this amount will be deducted from your damages does not mean that you will receive more money if you do not work: the mitigation doctrine requires that you make the effort.

4. How can I show that I tried to find another job?

Since the employers will have lawyers to defeat your claim, you must be prepared to show what efforts you have made. This means you need a written record. You need to keep copies of any letters or resumes written, and any newspaper or magazine advertisements for jobs that you pursue. Keep your unemployment documents, as those papers also contain a listing of employers that you contacted in your search for work.

It is important to keep a written record of all your efforts to get a new job. You can keep this record in a diary or log entries in a book or pad. If you use a computer, be sure to keep backup copies. Share your “mitigation” record with your lawyer. Your lawyer can review it to give advice about whether you are recording enough activities. For each entry in your record, include the following:

• The date of each activity
• The name and address of the prospective employer you contacted
• The position you applied for
• The names of people you met
• The outcome – including whether you met the job requirements, got an interview, got an offer, leads on other jobs, or some other outcome
• You can also record your registry with the state employment agency, the newspapers you read, and other efforts you make to get new employment.

5. What if I can’t find an acceptable job?

If you do receive offers of another job, you do not have to accept just any job that is offered in order to meet your duty of mitigating your damages.

For example, if you were employed as a professional in a position that paid more than $50,000 a year and offered substantial benefits, you would not be obligated to take a job at minimum wage, to flip hamburgers at a fast food restaurant, or to otherwise take the first thing that comes along. Likewise, if the type of position you held is relatively common, we are not aware of any law that would require you to conduct a nationwide search for employment or take a job in a distant or undesirable geographic location.

If you have any questions about your obligations if you do obtain a job offer, it is good to consult your lawyer before making a decision that could damage your case.

6. After the experience I went through in my last job, I am ready to change fields. Am I required to look for work in the same field I was working in when I lost my job?

No. All the doctrine of mitigation requires is that you make a reasonable effort to find employment that provides “virtually identical promotional opportunities, compensation, job responsibilities, and status.”

In some situations, you are more likely to be able to mitigate your damages if you pursue work in a different field, such as when you have been “blackballed,” or the time you have spent away from work has caused your skills to erode.

7. I was holding down two jobs when I was let go. Do my earnings from my second job count to offset my damages?

Earnings from second, “moonlighting” jobs are not included in the calculation of your earnings for damages purposes, if you would have been able to hold the job even if employed by your former employer.

However, you cannot “double-dip.” Whether these earnings count against your back pay will depend on whether they are considered a substitute for what you were earning before you lost your job, or instead a supplement to your former primary source of income from your employer.

8. After I was fired, I was forced to go on welfare. Is the income from public benefits included in the offset?

Generally, public benefits such as unemployment compensation, welfare, Food Stamps, etc., are not included in the calculation of your earnings and are not used to offset an award of back pay.

9. I went through severe harassment at work, which has made me unable to work. My doctor will not clear me to go back to work at all, since I have been diagnosed with post-traumatic stress disorder. Do I have to mitigate my damages?

One exception to the rule requiring you to mitigate your damages is when you become unable to work as a result of the employer’s actions. However, the bar is set very high: otherwise, everyone who was wrongfully terminated would claim that he or she is too stressed out to work. If you have any questions about your obligations to mitigate your damages during a period when you are unable to work, you should consult a lawyer.