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.