The Duty To Mitigate Lost Wages In Employment Termination Cases

By harley erbe

Financial Stress

As Des Moines wrongful termination lawyers, we often encounter the argument that our clients have not "mitigated" their damages.  But what does that mean?  "Mitigate" can be understood as meaning "reduce" or even "eliminate."  Mitigation of damages is most commonly implicated in employment termination cases through the argument that fired employees should've reduced or eliminated their lost wages by accepting reinstatement to their former position or by finding other employment after being fired. 

Employees have an obligation to mitigate their lost wages after being fired.  That obligation applies in all types of employment discrimination cases, including those involving race discrimination, sex discrimination, age discrimination, disability discrimination, FMLA violations, and drug and alcohol testing claims.  If a fired employee is determined to have failed to properly mitigate the employee's lost wages, that may reduce the amount of lost wages, emotional distress, and other damages that the employee is able to recover through a lawsuit.  

Regarding finding substitute employment after being fired, the general idea is that terminated employees who want to sue their employer can't just sit at home, earning no money through work, and expect to be paid through the lawsuit for all that downtime.  Instead, the law expects terminated employees to be out actively seeking suitable other employment after being fired.  Otherwise terminated employees face the possibility of having their lost wage and related damages severely reduced at trial.   

The emphasis is on "suitable" employment though.  Terminated employees are not required to mitigate damages by just grabbing the first available job.  In fact, taking a lesser job with less pay may in some circumstances be considered a failure to mitigate damages too in the sense that the employee is bot trying hard enough to make as much money as was previously made.  Instead, the duty to mitigate damages requires employees to look for employment comparable in pay and responsibility to their former job.  In determining whether suitable jobs were available, courts will consider factors such as the distance from the home to the place of employment, whether the job was full-time or part-time, the job's compensation and benefits, the necessary qualifications for the job, and the responsibilities of the job.

The issue of mitigation of lost wages through the search for substitute employment is guaranteed to arise in any employment termination case. You should therefore immediately begin compiling information pertinent to your job search.  That includes all job search documents.  Defense counsel will request those documents as part of your lawsuit.  Your attorney may want to use your job search documents as part of proving that you did try to mitigate your damages.

You should also keep a current, ongoing log or computer file containing certain information about your job search efforts:

  • Where you have looked for work;
  • The positions you have sought, applied for, or inquired about;
  • The name of each individual with whom you have spoken about that job;
  • Each response you received from your application;
  • Whether you were interviewed;
  • The results of the interview;
  • Whether you turned down any employment offers, and if so, why.

You'll be asked to provide that information as part of your employment termination lawsuit so it's important that it be detailed and accurate.

Please feel free to contact us if you need the assistance of a Des Moines employment lawyer.

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