The Practicalities of Mitigation

June 6, 2022

Patrick J. Gorman is a principal of Favaro & Gorman, Ltd.

If an employee has been wrongfully terminated from their employment and they seek to recover lost earnings, they should understand that they have a responsibility to mitigate those losses by a reasonable effort of seeking and accepting replacement employment. Whenever the word “reasonable” is used within the law, it generally means that ultimately a judge or jury will decide, based on the totality of all circumstances, whether a plaintiff seeking economic damages
has acted reasonably. The judge or jury will not look to a hard and fast rule (for example, whether the plaintiff looked for five jobs today, etc.) will examine the mitigation or mitigation efforts, in light of available employment opportunities and alternatives, the efforts made by the plaintiff to find employment, how that plaintiff has documented those efforts, the willingness to accept interviews and follow-up, the willingness to search beyond the most desired alternatives and to consider potentially undesirable options (such as moving outside of the industry, geography or pay/benefit range of the previous employment) and other factors.

The importance of mitigating lost earnings cannot be overstated: if an employee loses their job earning $100,000.00 a year, then files a lawsuit for wrongful termination, but simply sits home without seeking replacement employment, when their case comes to trial in three years and they ask the jury for $300,000.00 in lost wages, the jury would be in error to award that amount or potentially any amount. An employee claiming wrongful discharge cannot simply sit back and wait for their day in court. They must be busy mitigating their damages.

The terminated employee may view successful mitigation as a double-edged sword in that, while they should be happy that they have replaced their lost wages, that mitigation will reduce any amount they can hope to recover from their former employer. By way of example, if an employee is terminated from a job earning $100,000.00 a year on a Friday and on the following Monday they start a different but comparable job earning $100,000.00 a year, they will not have any lost earnings as a component of their wrongful termination case. There may be other components to consider, such as emotional distress, other economic losses, attorney’s fees and so forth, but the component of lost earnings will be out of the picture. Sadly, and often, despite efforts, a terminated employee is not able to fully offset their losses. So, to maximize the wrongfully terminated employee’s lost wages, they must mitigate, but how do they do that? As that decision will be up to a jury, we must assume what the intended jury
will want to hear: a jury will want to hear testimony that convinces them that the employee has made every reasonable effort to find and accept replacement employment. Those efforts begin with an active job search. This practitioner has periodically told, and sometimes shocked or offended, a client by saying they should be putting as much effort into finding a job as to they previously had working a job. In most instances this won’t be practicable, but if a member of the jury (or the jury as a whole) would have this mindset, the wrongfully terminated employee would do well to follow such advice. In most instances, it is not possible to spend forty hours a week in a job search, but significant amounts of time should be allocated for this purpose.

All available resources for potential employment must be explored. Try the old-fashioned paper want ads in newspapers and trade magazines. Access opportunities online both by searching employment services such as Monster and Indeed and the websites of potential employers. Note whether jobs are advertised by signs outside potential employer’s offices and factories. Contact a headhunter. Contact local schools, especially community colleges or your alma matter to determine if they have job listings or resources. Let friends, family, acquaintances and other resources know of your search. Hire a professional to help in your efforts. In other words, leave
no stone unturned. Having identified potential employers, the next step is to actually make applications for employment. Depending on the circumstances, that effort may involve walking in cold, filling out an online form, sending a traditional letter and application or whatever the circumstances require. Best efforts need to be made in each instance. By way of example, if you are submitting a cover letter and a resume, see that the resume is current and presents well. Take the time to write a personalized cover letter, perhaps identifying a particular connection with the company, it’s people or products/services. Submit the letter and resume in a timely fashion.
And then . . . follow up. If you had expected to hear form the potential employer within two weeks, post that date to your calendar and, on that date, send a gentle follow up letter. Sure, it’s likely that the answer will be “no,” but part of the reason you are doing this is to show your jury that you have tried to mitigate your damages. If, to continue this example, on cross examination, your former employer’s attorney challenges you, “Did you follow up on any of these job applications?” And your testimony is “No,” you’re unlikely to win the hearts of your jury. If, on the other hand, your answer is “Yes” and you can produce a follow up letter for each of those applications, your sincerity and credibility will be beyond reproach.

If and when you are offered an interview, take that interview. You do not want to testify to a jury that you were offered an opportunity to talk to someone about a job and you decided to turn it down (unless you’ve got a really good reason). There is inherent value in taking an interview simply to sharpen your interviewing skills. Nowadays, it is far more common to have the offer of an interview (and even several) than twenty years ago. It has become increasingly common to do very brief phone or video interviews and sometimes several within an organization. You will likely be one of a number of potential candidates interviewed and that interview may go no further. Whether it does or not, you want the jury to hear that you took that interview or several interviews. You also want your jury to hear (or see) that you followed up that interview with an email or letter expressing your appreciation and interest.

None of the efforts above will mean very much unless you adequately document those efforts. We suggest keeping a daily log documenting your activities and the time involved in those activities. Keep copies of the letters and resumes that you sent. Keep the emails and letters that you receive in response. Make notes of any phone calls, interviews and follow ups: be detailed and provide who, what, when and where in your notes. This may be especially difficult when making applications online and you may need to resort to saving or printing the individual pages as you go through the application. When your case reaches discovery, you will be asked to produce such records and it will not be effective if you don’t have any. At trial, you may have a stack of papers next to you during examination on your mitigation to help prove to the jury how hard you worked to find replacement employment. Document those efforts!

With the next step, mitigation can get tricky and unsatisfying: you are offered a job! If the job is within your locale, within your industry, within the kind of work that you enjoy and customarily do, and with pay and benefits comparable to that at the old employer, you will be hard pressed not to take that job. Or, in other words, you may have a difficult time explaining to a jury why you did not take that job. If, on the other hand, the job is halfway across the country, the job is outside of your industry, you don’t have real background in the duties, or the pay/benefits are not comparable, you may not have much of a problem in doing so. You will need to be prepared to explain your rationale to a jury and convince them of the reasonableness of that rationale. The factors of geography or locale, industry, duties and pay/benefits are likely the major areas within which the terminated employee (and potentially the jury) will consider the reasonableness of his mitigation efforts. The final “x-factor” is the passage of time. You may, after weeks or months of unsuccessful job searching, be willing to accept broader parameters for these considerations. And the considerations must be reasonable in the first place. By way of example, if you are unwilling to travel more than a mile away from home for replacement employment, that position may not sit well with a jury (especially if one of the members commonly commuted two hours to their employment!). As suggested toward the beginning of this writing, there is no hard and fast rule by which you should or must modify their expectations on these considerations.

Remember that the employee’s view of their mitigation is not what matters. It is the judge or jury’s view that is important. You need to set aside your objectives to work close to home, to stay with your industry, to have a particular job and/or make a particular salary. To the extent that those professed needs are based more in a physical or actual need, they will be more believable as reasons to forgo job opportunities than if they are simply the product of the employee’s emotional need. For example, if an employee must work within a certain geography so that they are available for childcare or to oversee an aging parent, that testimony will probably be more convincing than if they say that they simply don’t like to drive or fear a longer commute.

Similarly, a refusal to move outside of a given industry can be more or less explained: if the employee has spent forty years in a particular industry, it may be difficult for them to move outside of that industry or it may be high time that they do so. If you are only willing to accept employment as a driver for a horse drawn carriage, simply because that is the only work you have ever known, proving your mitigation to a jury may well be impossible. If you are limiting your job search to opportunities with specialized duties because this allows you to maximize your potential, some measure of explanation will be necessary. If you cannot accept a job paying less than a certain amount or providing a certain level of benefits, be prepared to tie those financial requirements to needs that the jury will be able to understand. They may view your needs very differently if you require a certain salary so that you can keep a roof over your head, take two vacations a year or pay the month installments on your yacht. Everything is situational and everything is viewed through the eyes of that jury.

The two important words to remember: effort and jury. The jury hearing the employee’s case
will need to believe and apricate the employee has made real and significant efforts to obtain replacement employment. If the employee convinces their jury of this, they will succeed in their claim for lost wages. If not, their failure to mitigate will serve to bar those damages. As with all
of our tips for clients, if you have any questions about the doctrine of mitigation or if you’re
wondering whether you have mitigated properly or if you’re considering whether a job is suitable
for mitigation, please let our office know.

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