A Wrongfully Terminated Employee Must Mitigate Damages

Posted By Markson Pico || 12-Dec-2013

You have probably heard the term "damages" in the context of a lawsuit discussed on TV, the radio, or even in movies. The term "damages" comes up in nearly every civil lawsuit. In a civil lawsuit, "damages" simply means the amount of money or other compensation that is awarded to a plaintiff for all of the harm caused as a legal result of the defendant's conduct. (Civil Code Section 3333).

Legal damages frequently can be of two types: Economic (i.e., out- -of-pocket expenses and lost wages), and, non-economic (e.g., pain and suffering and emotional distress). In employment lawsuits such as the ones handled by Markson Pico LLP, we make every effort to assess all of our client's damages from the very beginning of our involvement. However, this article will focus on economic damages, and even more specifically, lost wages. That is to say, when an employee is wrongfully terminated, the employee is deprived of the ability to earn their wages (or, income) from that job. And, while people frequently will complain about their jobs, jokingly or not, the truth is that in most cases the loss of a job and the wages earned from the job can be devastating in many ways. At Markson Pico LLP, we hear from people almost every day about how they lost their job and the financial hardship it has had on them and their families. And sometimes, depending on the person, the loss of their job may have been very demoralizing and depressing for the affected employee and make them feel like giving up.

However, at Markson Pico LLP, we always advise our clients that under California law, where they are physically and mentally able to do so, an employee who is wrongfully terminated still has a duty to take steps to minimize the loss from his/her termination by making reasonable efforts to find comparable employment. (In fact, under the law, a plaintiff cannot recover losses he/she could have avoided through reasonable efforts, such as trying to find another comparable job. (See, Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1568).

"Comparable employment" means employment, in the same geographical area, that affords the same compensation, job responsibilities, promotional opportunities, working conditions and status as the position from which he/she was terminated. A terminated employee has no obligation to seek or accept employment of a different or inferior kind. (However, in many cases, we see our clients take such jobs because like all of us, they have bills to pay and need to take care of their families. Not to worry though! In such circumstances, the employee can still seek to recover for the difference between what he/she made at their prior job what they earn at the new job.)

Further, a terminated employee who is unable to find comparable employment after making reasonable efforts, may properly choose to return to school full-time if it would be reasonable for him/her to do so under the circumstances.

This principle is called "mitigation of damages" and it is very important in employment lawsuits when it comes time to go to trial or resolve the case. The lawyers for the former employer, the judge, and even the jury, always want to know what the plaintiff did after she lost her job to find a new job and if she made reasonable efforts to do so. And, it can be held against her if she did not. For a number of reasons it is always better that the employee made her best efforts to look for a new job.

If you feel you have been wrongfully terminated from your job and would like to speak with an attorney about it, please callMarkson Pico LLP. We would like to discuss it with you.

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