Importance of Mitigation of Wage Loss

Published: 21st July 2009
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Just because an employee is wrongfully terminated, it doesn't mean that he or she should focus all his/her attention on pursuing the employment case against his or her former employer.

An employee is required to perform mitigation of wage loss as well.

Mitigation of wage loss refers to the act of an employee to try and make a good faith effort to reduce the amount of lost wages when he/she lost his/her job as a result of a wrongful termination.

Under the law, all claimants have a duty to mitigate damages. A personal injury claimant should make an effort to reduce the injuries by seeking medical treatment. The defendant will not be liable for further injuries the claimant sustains as a result of not consulting a doctor.

Similar to personal injury claims, employment cases require that the claimant make a reasonable effort to find new employment and to accept a job of "like nature" if available.

Effects of Failure to Mitigate Wage Loss

An employer and their attorney who is losing an employment or wrongful termination case will argue to the court that the former employee was not able to mitigate lost wages.

They will try to prove that from the time that the employee has been terminated until the current time, the employee should have been able to find a reasonable replacement job to compensate for some of the lost wages brought by the termination.

If the employer and their attorney could prove that the employee did not reasonably make a good faith effort to look for a job of "like nature", the claimant will likely receive a very small amount even if he wins the case.

If you do find some work, the court will deduct any compensation earned by working form the date of unlawful termination until the date of the verdict.

If you were not able to find work during that period but made a reasonable effort to find work, then you will be awarded the full damages.

Proving Employee's Efforts to Mitigate Wage Loss

Since the employer's side will be challenging your claim that an employee tried to mitigate lost wages, the following tips can help support the claim:

• Keep copies of resume and application letters

• Keep copies of the job advertisements claimant has pursued

• Keep unemployment documents including employers contacted in search for work

• Keep all records of job hunting effort in a diary and include these details:

o Date of the activity (date of interview, application, etc.)

o Name and address of prospective company

o Position applied for

o The name of the people you talked to including interviewers

o The outcome - job offer or not

• Back up all records just in case computer crashes

It is ok if the claimant cannot find an acceptable job. He/she is not required to just take any job to prove mitigation of wage loss. The claimant does not have to take a job at another line of work, a demotion or employment that is inconveniently located.

The important thing is to prove that the claimant made a reasonable effort to try mitigating his/her wage loss.

To help you deal with issues on wrongful termination involving mitigation of wage loss, consult with our skilled employment attorneys. Visit our website and call us toll free for legal assistance.

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