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The Duty To Mitigate Damages in Employment Cases--What Does It Mean?

April 1, 2017

In many civil cases, plaintiffs or claimants are required to mitigate or minimize their damages by undertaking reasonable efforts to do so. In employment cases, W.Va. Code §55-7E-1 through 3 (enacted in 2015) requires you in any employment action taken against a current or former employer to mitigate your wage losses regardless if your action is grounded in common law or statutory law. The law means that you must take affirmative action or make a good faith attempt to mitigate your past and future wage losses, even if the employer’s conduct was willful or malicious. The policy behind the doctrine of mitigation is to encourage plaintiffs to seek work.

Mitigating your wage losses means that after your wrongful discharge, retaliatory discharge or other employment law claims, you searched for and accepted comparable employment. It also means accepting an offer of reinstatement from your former employer if it was appropriate. It does not mean that you have to accept any offer of employment; only one that offers substantially the same pay and benefits.

Back or front pay is awarded to plaintiffs who can prove unlawful discharge but these awards are reduced by the number of earnings you earned incomparable or substantially equivalent employment. Back pay awards include all earnings, benefits, bonuses, unused vacation time, sick time, the value of insurance premiums the employer would have paid had you continued employment and commissions lost because of the wrongful discharge or other unlawful action. The court will deduct from the award any money you were able to earn from the date of discharge to the time of the verdict in your favor. If awarded future lost wages, the court can deduct any compensation you were likely to earn from the date of the verdict to the end of your working life.

Front pay is awarded if the court determines that reinstatement to your former employment is inappropriate because of a hostile work environment or other circumstances. The award is for compensation and benefits the court views as necessary to make up for the difference in pay you would have earned in the future. A court has to determine how long it would take you to return to the same level of pay you were earning when discharged.

If you fail to mitigate your damages, a court can award you nominal damages, which is essentially one dollar. The maliciousness of your employer is forcing you to resign, discriminating against you or imposing unreasonable employment conditions will not excuse you from your duty to mitigate.

You need only seek work that is similar to the one for which you were discharged. You are not required to seek nor accept substantially inferior employment or have to accept work that is an unreasonable distance from your home. Your efforts to find work of a “like nature” need not be exhaustive but be reasonable.

To demonstrate that you took reasonable efforts to find comparable employment, keep a work log and include the following:

 Date of each phone call or application submitted

 Name and address of each contacted employer

 Position for which you applied

 Names and titles of people you met

 Outcome of search including scheduled interviews or letters of rejection

 Date you registered with an employment agency

 Names of recruiters and efforts to find you employment

The value of unemployment benefits or food stamps or other public benefits will not offset an award for back pay.

You may be excused from mitigating your losses if you can demonstrate that you suffered severe depression or other mental harm such as Post-Traumatic Stress Disorder though this is a high standard to meet.

If you have a question about an employment case / wrongful termination case, give us a call. At Wolfe, White & Associates we know the law and how to help protect your livelihood when you’ve been unlawfully terminated. Call us at 304-245-9097 for a free consultation.

Steven S. Wolfe,