Julie St. John
Texas Employment Lawyer Julie St. John

Your employer has just fired you for an illegal reason. What do you do next? Your next step is probably contacting an employment lawyer. Indeed, it probably should be. Then let’s say you hire an employment lawyer who tells you you have a really strong case against your previous employer. What next? Is it time to sit back and wait for your big payday? No! It’s not. 

Why not? Because employees who have been fired for an illegal reason have a duty to mitigate their damages. 

There are different types of damages (i.e. losses), but one of the big ones in employment law cases is backpay. Simply put, backpay is the money the employee would have earned if the employer would not have fired the employee for an illegal reason. Put another way, it is the wages and benefits an employee loses out on by no longer having a job—a job they would still have if the employer did not fire them for an illegal reason.

To attempt to mitigate (i.e. lessen, reduce, minimize) those damages, an employee must diligently search for a new job. Obviously, getting a new job would decrease, or even possibly eliminate entirely, the lost wages and benefits. This might make some folks inclined to not look for a new job to try to keep their losses, and accordingly their potential settlement value or judgment, high. But it does not work that way.  

If an employee who has been fired for an illegal reason has not made a diligent effort to find a new job, the law provides the employer with a failure to mitigate defense. Now this is something the employer has the burden to prove; it is what is called an affirmative defense. But, if the employer can prove there were substantially equivalent jobs out there and the employee failed to use reasonable diligence to get one of those jobs, then a court can reduce a damages award. The court can take away money from a judgment based on the amount the employee could have potentially earned if he or she had gotten one of the substantially equivalent jobs. 

Now, this does not mean the wrongfully terminated employee needs to apply for just any job or accept whatever comes along. The work has to be “substantially equivalent.” This means the job has to be very similar in terms of job responsibilities, working conditions, status, pay, benefits, and promotion opportunities. In other words, the employee does not have to accept a demotion. Nevertheless, the employee MUST look for jobs that would meet the necessary requirements. And, the employee must keep looking. If the employee stops looking after a certain amount of time, the court may reduce damages to only the amount of time the employee was actually diligently searching. See West v. Nabors Drilling USA, Inc., 330 F.3d 379 (5th Cir. 1990). 

If you have been fired for an illegal reason, it is extremely important for you to keep detailed records of your diligent efforts to find another job. Those records should include all the positions you applied for (including the name, address, and phone number of the potential new employers), cover letters you send out, different versions of your resume, anyone you talk to about potential job opportunities like recruiters, career consultants, or job search agencies, networking events or job fairs you attend, any response you receive from potential new employers, whether you were interviewed for any position to which you apply (including details of the interview like when it occurred and who you met with), and any offers you receive (including details of the position, pay, benefits, hours, and start date). Additionally, if you are offered a job that you turn down, you should keep an explanation of why you turned it down. You need to have a really good reason for turning it down, and you should talk to your employment lawyer before you turn it down. 

Overall, if you have been fired for an illegal reason, you should start your search for a new job and consult with an employment attorney right away. You need to make absolutely sure you are doing everything you need to do to find a new job so your previous employer cannot use your lack of effort against you.  

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Photo of Julie St. John Julie St. John

We asked Julie L. St. John, an experienced Trial Attorney in the Houston office of Wiley Wheeler, P.C., to impart her candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Ms.

We asked Julie L. St. John, an experienced Trial Attorney in the Houston office of Wiley Wheeler, P.C., to impart her candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Ms. St. John carries.

1. Why did you start practicing labor and employment law?

Because I care about the rights of employees and believe all workers should be treated fairly. 

2. If you could write a new law, what would it do?

Guarantee a living wage for all workers.

 3. Besides Rob Wiley, P.C., what is the most interesting job that you have had?

I worked as the beer cart girl at a golf course in college. 

4. What’s the best part of living in Houston?

Houston is clearly the best city in Texas, way better than Austin or Dallas. The people are wonderful, and the food is delicious. The only downside is the traffic, which is why I refuse to go outside of the loop (with a key exception for Ikea).

 5. If you were not practicing labor and employment law what would you be?

I would start a gardening/landscaping company with animals that do the work. The goats would eat the weeds, the pigs would till the ground, and the chickens would keep the bugs away.

6. Why did you decide to become a lawyer?

To have another tool to use to fight for things I believe in. I’ve always wanted to change the world.

7. What do you do when you’re not practicing law?

Travel, watch Ohio State football, and work to make my cat instafamous.

8. What’s your favorite legal movie

The Pelican Brief because it features Tulane Law!

9. Have you ever learned something from one of your clients?

I learn something from almost all of my clients. Most importantly, courage.

10. Who do you most admire as a lawyer?

Kalandra Wheeler

Julie L. St. John is a Trial Attorney in the Houston office of Wiley Wheeler, P.C. She graduated from Ohio State University with her bachelor’s degree in 2007. Ms. St. John then graduated from Tulane University School of Law in 2017.