Most of the time, if an employee decides to talk to an employment attorney it is because they have been fired. And even if reinstatement to the employee’s old job is a possibility, often when they were fired for an illegal reason they are understandably afraid of returning to the lion’s den to face retaliation. But if you are an employee who was fired for an illegal reason and do not feel safe returning to that same employer (or your employer just refuses to take you back), it is critically important that you keep in mind your “duty to mitigate.” This article explores some key points of that means, why it is important, and what you can do to fulfill that duty.
The point of any employment lawsuit is ultimately “restorative,” to put the employee in the same place they would have been but for the illegal actions of their employer. If feasible, that includes reinstating them to the position they lost. But reinstatement is not always feasible, and it alone does not always fully compensate an employee for what they lost. So, one major thing that most employment lawsuits usually ask for is compensation for lost wages (“backpay”) through the time of trial. However, courts will not allow an employee to artificially increase what they can get out of a lawsuit by tactically increasing what the employee has lost. Instead, courts impose a “duty to mitigate,” which means a fired employee who is asking for backpay in a lawsuit must make reasonable efforts to find and keep comparable employment.
If a jury decides you have failed to mitigate your damages, you may not be able to recover any lost wages beyond the time they decide you stopped mitigating. This might even remove your ability to win back any lost wages at all! Frustratingly, you could very well prove that your employer violated the law by firing you, but not actually get full compensation because the jury decided you did not mitigate your damages. Avoiding that outcome is extremely important, but doable with effort.
Exactly what “reasonable efforts” or “comparable employment” mean depend heavily on your circumstances. Comparable employment is generally a position that is “substantially equivalent” to your old one, taking account of your skills, background, and experience. The duty to mitigate does not demand you do the impossible. If comparable work simply does not exist (for example, due to industry conditions, a non-compete, or the specialized nature of your work), you are not obligated to get blood from a stone. You do not have to change industries, accept a massive pay cut, or do demeaning work. If you have done everything you reasonably can to find comparable employment and not succeeded, that is not a failure to mitigate. However, if you have been out of work for an extended period, it can generally be a good idea not to turn down an offer for a comparable job just because it involves some sort of pay cut. You should be prepared to explain any job offers you turned down. And of course, you can take a non-comparable job just to have a source of income.
Employers will claim by reflex that employees have failed to mitigate their damages, regardless of the reality of the situation. Even if you do ultimately find comparable employment, they will jump on anything you do—or fail to do—to try to paint you as not applying to enough jobs, or as someone who is just lazy or an undesirable employee. While the burden is ultimately on the employer to prove you did not mitigate your damages, it is critical both that you actually make reasonable efforts to mitigate, and keep track of those efforts. It is a good idea to keep a written file of all places you have applied and information about them, like what the position is, how much it paid, your communications with that employer, or if you got an offer. Even if you didn’t apply to a job but just put out feelers, that still can show your reasonable efforts. And it is generally a good idea to be consistent; employers will use any gaps in your job search to cast you in a bad light.
If you think you have been fired for an illegal reason and have questions about what it would take to restore what you lost, you should consult with an employment attorney.