Employees have an obligation in wrongful discharge suits

Employees who claim they are wrongfully discharged have a duty to mitigate the losses they may suffer from the termination.

The most basic component of damages in a wrongful dismissal or discrimination lawsuit is lost earnings. Generally, a dismissed employee’s damages are measured by what she would have earned from her former employer from the date of the dismissal until the date of trial, less any earnings received from replacement employment before trial.

An employee has a legal duty to look for employment comparable in pay and responsibility to his or her former job. Sitting back and hoping to recover the full amount of lost salary at trial is not a prudent strategy, as employers have a right to discover evidence that a dismissed employee looked for a job and may seek an instruction from the judge that tells the jury to refrain from awarding damages for lost wages if the employee did not undertake a reasonable job search.

This duty to mitigate damages is not limited to employment termination suits. The law requires that a party seeking damages not make his or her situation worse. A homeowner suing for a shoddy roof repair cannot, for example, leave her house open to the elements while suit is pending and then sue for the complete destruction of the home. Similarly, employees may not sue for lost wages if they do not look for a replacement job.

The attorneys representing the parties in a lawsuit about an employment termination will want to know specifically what the employee has done to meet his or her duty to mitigate damages. The employee will be asked questions about where she or she has looked for work or posted her resume. The employee should expect to document the specific details of her job hunt and the results of every job inquiry made. Registration with recruiters or job placement agencies will also be the subject of fair inquiry. All of the information requested will be examined for its completeness and all representations made in job applications must be truthful, including why the employee left her former job.

Employers will ask if an employee has worked under the table while a lawsuit was pending, raising issues for the jury about the employee’s overall truthfulness if he or she cheats on taxes.

All things considered

The attorneys also will be very interested in any job offers received by the employee. The employee must accept comparable employment, which basically means a job with similar duties in a similar field with a somewhat similar salary. Often, family economics will require an employee to take a lesser job that is not comparable to what was lost. In this case, the employee may take the job, but must continue to search for a comparable job.

Some employees go back to school or start their own businesses after being fired. While laudable, these activities may detract from the employee’s duty to search for comparable work and may be considered evidence of breaching the duty to mitigate damages. Of course, night school or part-time work that does not affect the employee’s ability to undertake a comparable job will not be held against the employee.

Terminations from subsequent jobs may be considered at trial. Employers may argue that employees terminated from a subsequent job voluntarily removed themselves from the workforce. This dispute will turn on whether the subsequent dismissal was for cause or not. Subsequent work evaluations at the new job also may be relevant to the pending suit.

Employment lawsuits should not be initiated unless the employer has done something wrong and the employee can show that he or she has been substantially harmed by the employer’s misconduct. The employee’s duty to mitigate damages and the costs of litigation make it too costly to sue when, although liability may be established, the employee has not suffered substantial damages. nhbr

Andru Volinsky is managing partner of Bernstein, Shur, Sawyer and Nelson PA’s New Hampshire offices and specializes in employment law, commercial litigation and white collar criminal law.