Mitigation of Damages: Employees Bringing Wrongful Termination Claims Must Make Reasonable Efforts to Find Another Job

What Does it Mean to Mitigate Your Damages?

In a discrimination, retaliation, or other wrongful termination case, the largest component of your damages is often your lost wages. The starting point to calculate those damages is to figure out how much you would have received from your former employer if you had not been fired.

However, the law requires you to mitigate your economic losses, meaning you must make reasonable efforts to replace your lost salary and benefits. Accordingly, your economic damages will be reduced by what you earn from a new job you find to replace the job you lost, as well as any additional amount you could have earned if you had made a reasonable (or more reasonable) effort to find another job.

Why Does the Law Require You to Mitigate Your Damages?

There are several reasons why the law requires you to mitigate your economic damages in an employment discrimination or retaliation case. One reason stems from the fact that the primary purpose of awarding lost wages is to make you “whole” by reimbursing you for the economic loss you suffered. If your losses were not offset by what you actually earn from another job, and you recovered what you would have earned from your previous employer if you had not been fired, then you would be made more than whole. Mitigation also encourages you to seek employment, because it is considered a benefit to society for you to return to the workplace.

What is a Reasonable Effort to Find A Similar Job?

Defining what is a “reasonable job search effort” depends on the circumstances, and ultimately is determined by a judge or jury. What is clear is that it is not reasonable for you to do little or nothing to find another job, unless you are medically unable to work or if there is some other reason why it is reasonable to delay your job search, such as if you would have been on a family leave, medical leave, or maternity leave even if you had not been fired.

Otherwise, you must take reasonable steps to find a similar job. The more you do to find another job, the more likely it is that you will be found to have acted reasonably.

What is Considered a Similar Job?

To be considered similar, a job must be comparable in terms of the type of work, the location of the job, and the compensation. However, similar does not mean identical or nearly identical. Rather, depending on factors such as your skill, experience, and level of education, a job might be considered similar even if it is in a different industry, requires a further commute, pays a lower salary, and/or offers lower benefits. Ultimately, the question comes down to whether it is reasonable under the circumstances for you to reject the job.

Do I Have to Lower My Sights At Some Point?

Generally, the longer it takes you to find another job, the more flexible the law requires you to be with respect to what job you are willing to accept. In other words, the longer you remain unemployed, the more you need to lower your sights and consider jobs with lower pay, worse benefits, different work, or a longer commute.

As a result, if you are unemployed for a relatively long period, your lost wage damages claim could potentially be cut off unless you expand the type of jobs you seek, reduce your salary requirements, or enlarge the geographical area in which you seek employment.

Whether and to what extent you must lower your sights depends on your skills and qualifications possessed, and whether your family status restricts your ability to accept a job in another geographic area. The overriding principal is that you must do what is reasonable under the circumstances.

How Do I Prove That I Made Reasonable Efforts to Mitigate My Damages?

Especially in difficult economic times, it often takes a long time to find another suitable job. Discrimination, retaliation, and other forms of wrongful discharge are bad enough. You do not want to have your damages limited because it looks as if you did not search hard enough for a new job. As a result, it is very important that you keep as much documentation as possible demonstrating your diligent job search efforts.

Practical Tips

To the extent practical, you should try to keep:

  1. Copies of every job ad to which you responded, including printouts of online job ads.
  2. Copies of each version of your resume you sent out.
  3. Copies of each job applications or cover letter you sent out.
  4. Copies of each acknowledgment letter, rejection letter, and offer letters you received.
  5. Your date book, computer calendar, PDA calendar, or other calendar showing dates of job interviews or other job search efforts.
  6. Any other documents showing you searched for a job.

If you have been fired, laid off, or otherwise wrongfully terminated, you should consider contacting an experienced employment lawyer for further information regarding your potential legal claim.

The lawyers at our employment law and civil rights law firm, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

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5 responses to “Mitigation of Damages: Employees Bringing Wrongful Termination Claims Must Make Reasonable Efforts to Find Another Job”

  1. You bring up a point that often gets overlooked: a terminated employee must make a reasonable effort to find another job. Many who get laid off, at least in my experience, rest of their laurels and anticipate that a lawsuit will fix their problems. The law can’t, and won’t, be able to prosecute without the other qualifications being satisfied.

  2. Thank you for the comment. I should note, just to be clear, that you still can bring a discrimination or other wrongful termination claim even if you do not look for another job. While your economic damages will be cut off if you do not make reasonable efforts to find employment, that does not mean you do not have a legal claim with the potential to emotional distress damages, attorneys fees, and possibly even punitive damages. However, it also can impact your credibility with a jury.

  3. David Adams says:

    While a reasonable job search is very subjective, we regularly refer to the Job Search Guide by the New York Department of Labor at:http://www.labor.state.ny.us/careerservices/findajob/tableco.shtmBy contrast, we have seen instances where plaintiffs have submitted hundreds of pages from monster.com as evidence of a job search. However, fact finders have found this to be insufficiently diligent.

  4. John Smith says:

    What effect does career change make in the scheme of things? Specifically, what if a person tries to find suitable employment and is unsuccesfull and then decides to change a career?Also, it is well established law that if the defendant employer claims insufficinet diligency on part of the plaintiff employee, then it is incumbent on the defendant employer, by the preponderance of evidence, to establish that the plaintiff employee was insufficiently diligent in finding suitable employment.Please comment.

  5. You raise some interesting questions. The primary underlying principle is whether the individual has acted reasonably under the circumstance. As a result, in my opinion a career change should be considered appropriate mitigation as long as it was a reasonable decision under the circumstances. Of course, what is reasonable is ultimately decided by a judge or a jury.You are correct that, at a trial, the employer has the burden to prove, by a preponderance of the evidence, that the employee failed to mitigate his damages. However, the more evidence the employee has that he or she made reasonable (or better yet, more than reasonable) efforts to find another job, the less likely that mitigation will even be an issue at the trial or during any settlement negotiations.