Limitations on Plaintiff’s Duty to Mitigate

Item: Winer, Burritt & Scott, LLP
Rating: 5
Author: Stacey Johnson

Although a terminated employee has a duty to exercise reasonable diligence to seek and obtain employment, this duty is not limitless.

First of all, a plaintiff must only exercise reasonable diligence to seek and obtain employment, the duty to mitigate does not require plaintiff to suffer undue risk, burden or humiliation. Restatement (2nd) of Contracts §350 (1979). The plaintiff’s human feelings must be considered when determining whether or not the plaintiff exercised reasonable diligence in seeking subsequent employment. DFEH v. C.E. Miller, Inc., (1984) FEHC DEC. NO. 84-02. If a plaintiff exercises reasonable diligence, he or she need not take extraordinary steps to obtain a comparable position. DFEH v. San Mateo County Sheriff’s Office (1982) FEHC DEC. NO. 82-16.

In order to mitigate damages, an employee need only seek work which is similar to the work he or she performed before discharge. College – Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 508 N.E.2d 587, 46 FEP Cases 1406 (1987). However, if an employee has several skills or trades, he or she may be required to find and accept work in any of the trades in which he or she is trained, even if it is different than the work performed for the defendant employer. State ex rel. Schilling v. Baird, 65 Wis. 2d 394, 322 N.W.2d 666 (1974).

A claimant does not have to seek substantially inferior employment. Rabago-Alvarez v. BART Indus., (1976) 55 Cal.App.3d 91, 127 Cal.Rptr. 222. “The employee’s rejection of or failure to seek other available employment of different or inferior kind may not be resorted to in order to mitigate damages.” Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 182, 89 Cal.Rptr. 737, 740.

Further, even when similar work is available, the employee does not have to leave his family in order mitigate damages. State ex rel. Martin v. Columbus, 58 Ohio St.2d 261, 12 Ohio Opp.3d 268, 389 N.E.2d 1123979. Also, an employee does not have to accept work at an unreasonable distance from his or her home. Ford v. Nicks, 866 F.2d 865, 48 FEP Cases 1657 (6 Cir. 1989); Smith v. Concordia Parish School Bd., 387 F.Supp. 887, 16 FEP Cases 1238 (W.D. La., 1975); Suciu v. Amfac Distrib. Corp., 138 Ariz. 514, 675 P.2d 1333 (Ariz.Ct.App. 1983); Puunkar v. King Plastics Corp., 290 So.2d 505 (Fla.Dist.Ct.App. 1974), cert. denied, 297 So.2d 30 (Fla. 1974). However, at least one court has refused to apply the “locality rule.” Boynton v. TRW, Inc., 71 F.2d 555, 121 LRRM 2432 (6th Cir. 1986).

Part time workers are not subject to the mitigation rule. Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, 89 Cal.Rptr. 737, 474 P.2d 689 (1970); People ex rel. Bourne v. Johnson, 32 Ill.2d 324, 205 N.E.2d 470 (1965); Flanigan v. Prudential Fed. Sav. & Loan Ass’n, 221 Mont. 419, 720 P.2d 257, 1 IER Cases 1410, 122 LRRM 2597 (1986), appeal dismissed, 479 U.S. 980, 1 IER Cases 1488, 123 LRRM 3128 (1986). Further, at least one court has held that public employees are not obligated to mitigate. Gunsolley v. Bushby, 19 Or.App. 884, 529 P.2d 950 (1974). If a discharged employee obtains a part time job after termination that he or she could have held while employed by the defendant, the earnings from that job are not deductible from back pay. Bing v. Roadway Express (5th Cir. 1973) 485 F.2d 441. There is also no duty to mitigate liquidated damages such as severance pay Salvatori Corp. v. Rubin, 159 Ga.App. 369, 283 S.E.2d 326 (1981); Fletcher v. Amax, Inc., 160 Ga.App. 692, 288 S.E.2d 49 (1981); Wassenar v. Panos, 111 Wis.2d 518, 331 N.W.2d 357 (1983) and the fact that an employee may earn money elsewhere during the unexpired term of an employment contract has no bearing on his or her right to recover salary for the unexpired term. Desonier v. Golden Gulf Marine Operators, Inc., 474 So.2d 1314 (La.App. 1985), cert. denied, 476 So.2d 236 (La. 1985).

Practice Tip: Instruct your client during the initial interview that he or she should take reasonable steps to seek employment and he or she should document his or her efforts and keep a “job search” diary.

This article was authored by John D. Winer. Winer, Burritt & Scott, LLP specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.