It is YOUR Duty to Mitigate – And You Could Be Sorry If You Don’t

You could have a rock-solid discrimination, harassment and/or retaliation case, or even a breach of contract case, and win at trial and (surprise) recover absolutely nothing if you fail to look for another job – what the law calls “mitigate damages.” This means that you have to do what you can to minimize damages caused against you by your case.

In employment cases, you must make a good faith effort to reduce the money that you have lost in wages because your former employer caused you to lose your job. As a discharged worker, you must make “reasonable efforts” to find another job and to accept a comparable job if you get a job offer. If you don’t, you employer may persuade that judge that you did not really make sincere efforts to find comparable employment and, therefore, you should recover nothing.

It is very important to keep a written record of all your job search efforts and save all on-line applications. You should keep track of the employer’s name, dates you applied and the results while saving all documentation. Web sites delete user accounts after a certain number of days, so you should print out your job search records regularly.

You are only required to accept a job of a like nature or a job that is similar to your former job. If you made $80,000 a year as an account executive, for example, you are not required to accept a job that pays only minimum wage. On the other hand, if you are in a low-paying job, a court may say that you should have accepted a minimum-wage job at a fast food restaurant or something similar to that.

Also, if you decide to further your education with the hopes of getting a better job, your duty to mitigate lessens. In  Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001), “Miller enrolled in school only after a diligent but fruitless search for employment … Miller thus did not voluntarily absent herself from an active job market because she believed her ultimate earning potential would be enhanced with the benefit of further education. … Additionally, the employee did not fail to mitigate her damages where her pursuit of a graduate degree was made only after a diligent but fruitless search for employment and she believed her ultimate earning potential would be enhanced with the benefit of further education”).

In Dailey v. Societe Generale, 108 F.3d 451 (2nd Cir. 1997), “We believe that a fact-finder may, under certain circumstances, conclude that one who chooses to attend school only when diligent efforts to find work prove fruitless…satisfies his or her duty to mitigate”). And in Killian v. Yorozu Auto. Tenn., Inc., 454 F.3d 549 (6th Cir. 2006), “It cannot be said that she removed herself from the job market prematurely, and we cannot fault her for embarking upon a new career when there were no comparable positions available in her old one. We therefore join a number of other circuits in holding that enrollment in school after a diligent job search does not constitute a failure to mitigate.”

There are many other issues that relate to mitigation that you should consider if you are bringing a legal claim against any employer. Lebau & Neuworth welcomed your inquiries on this subject, so contact us at (410) 296-3030 or lebauneuworth.com/contact-us.