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Wrongful Termination and the Duty to Mitigate Damages

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Is There a Duty to Mitigate Damages When an Employer Breaches an Employment Contract?

Yes. If you have been wrongfully terminated from your current job, were under contract, or were unjustly fired, it is possible to collect the expectation measure of damages, which would be the money owed to you under the employment contract either for the remaining or a reasonable amount of time. However, you must look for other comparable employment, and subtract whatever you make from that job from what you request in damages.

What Is the Measure of Damages?

The measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment.

What Factors Do Courts Consider When Assessing the Duty to Mitigate?

The following are the most general factors a court looks at when assessing the duty to mitigate damages:

  • Before projected earnings from other employment opportunities not sought or accepted by the discharged employee can be applied in mitigation, the employer must show that the employment was comparable, or substantially similar, to that of which the employee has been deprived.
  • The employee's rejection of, or failure to seek, other available employment of a different or inferior kind may not be resorted to in order to mitigate damages.
  • The deprivation of infringement of an employee's rights held under an original employment contract converts the available other employment relied upon by the employer to mitigate damages, into inferior employment which the employee need not seek or accept.

Should I Contact an Employment Lawyer?

If you have been fired or have fired an employee, and you are uncertain as to the duty to mitigate the damages under the circumstances, the advice of an employment attorney can be extremely helpful. Because of the complicated nature of this field of law, it is beneficial to discuss these various legal matters with an attorney with experience in this particular field.

Photo of page author Adam Vukovic

, LegalMatch Legal Writer and Attorney at Law

Last Modified: 10-03-2016 08:59 PM PDT

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