Duty to mitigate damages

The duty to mitigate in employment cases

One component of the damages that an employee plaintiff seeks to recover from his or her former employer is the amount of wages that the employee has lost because his or her employment was wrongfully terminated. This lost wages amount is measured by the earnings the employee would have received from the former employer (had the employee remained employed) from the date of the employee’s termination through the date of the trial minus any amount the employee earns from part- or full-time work.

The employee plaintiff has a duty to “mitigate damages” by attempting to find employment that is comparable to the former employment. If the employee elects not to try to find comparable employment or turns down an offer of employment that is comparable to the former employment, then he or she will not be entitled to recover lost wages.

How to mitigate damages in employment cases

At a minimum, the steps for an employee to take to mitigate damages are the steps that a reasonable person who has lost his or her job would take to find new employment. This means, among other things: asking friends and relatives if they are aware of any job openings, looking in the classified advertisements in the local newspapers, searching for jobs on Monster.com and similar Internet sites, preparing a resume and posting it on Monster.com and similar sites, and contacting a headhunter or recruiting company or employment agency.

Furthermore, the employee plaintiff can’t just take these steps once or even on occasion, but must engage in efforts to find comparable employment on a regular basis.

Just as important as trying to find comparable employment is keeping meticulous records of the job search. This is important because at the employee plaintiff’s deposition, opposing counsel will ask in detail about job search efforts. He or she will ask the employee plaintiff:

  • What have you done to look for work?
  • Have you created a résumé?
  • Have you submitted any job applications or résumés to any potential employers?
  • Have you posted your résumé online?
  • Have you called anyone to determine if there were openings?

Opposing counsel will ask the employee plaintiff to provide:

  • The name of each company to which you applied or inquired about a job.
  • The name and position of each person you spoke to about job openings.
  • Any and all documents that relate or pertain to your job search (your résumé, job applications, interview letters, offer letters, rejection letter, etc.).

If the employee plaintiff is unable to testify in detail about his or her job search efforts, then opposing counsel will ask the court to prevent the employee plaintiff from collecting any damages for lost wages. The value of keeping meticulous records of the job search is that it enables the employee plaintiff to be able to remember the information necessary to prove that he or she mitigated damages.

How to keep a record of job searches

An employee plaintiff should keep a written list of every single job that he or she looks for, inquires about, and applies for. This list should include every person that the employee plaintiff communicated with about a potential job.

This list should be created with the intention of providing it to the employee plaintiff’s attorney. Therefore, it should state: “PRIVILEGED ATTORNEY-CLIENT COMMUNICATION” at the top of each page. This will allow the attorney to review it in confidence, and then make a decision about whether or not to waive the attorney-client privilege and use it as evidence to prove that the employee plaintiff mitigated damages.

The following multi-column chart is a sample of a way that job search information may be kept:

Save every document regarding the job search

An employee plaintiff should save every single document that pertains to his or her job search. This includes:

  • Classified advertisements that have been reviewed (even if there was nothing there).
  • The employee’s résumé (including each different version).
  • Any employment applications that are filled out.
  • Any cover letters that were prepared to send in along with a résumé or application.
  • Any e-mails sent or received about the job search.
  • Print-outs from any searches conducted on Monster.com or similar websites.
  • Letters setting up an interview.
  • Rejection letters.
  • Offer letters.