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California court: 3-hr commute factor in determining damages

When an employer terminates an employee in retaliation for blowing the whistle on illegal activity or based on the employee’s race, religion, gender or other protected class, it could become the basis of a wrongful termination lawsuit. In court, the plaintiff must provide evidence that proves that this was the basis for the termination.

Proving that the termination was wrongful is only part of the courtroom discussion. After this finding, the jury must determine what damages the plaintiff is entitled to. In these cases, compensation for wages lost as a result of the wrongful termination is a common request.

What if the employee finds a new job shortly after the termination? Could this affect the employee’s damages award? Let’s look at a recent case from California.

In this case, the jury determined that the employee was terminated from his job as a maintenance planner with a cement production company with three years left on the contract. Eight months after the termination, the man found new employment as a maintenance supervisor at another cement company. The salary for this second job was nearly the same. In fact, it was $3,601 more.

The main difference between the two jobs was that the second job was farther away from his home, resulting in a two or even three-hour commute. To remedy this abnormally long commute, the man rented an apartment. This resulted in some extra costs.

What should the damages award include? California courts do not want to punish individuals for seeking further employment. Thus, to mitigate or reduce damages based on subsequent employment, the court instructed the jury that damages could be reduced based on any employment that is substantially similar to his former job.

In this case, the employee asked for $44,000, a value based on the eight months of unemployment. The jury determined that the man was entitled to $198,000 representing the three years left on the contract.

On appeal based on the damages award, the court ruled that the location of the second job was a sufficient basis for the jury to determine that it was not a substantially similar job. The initial request for a lower damage award also did not invalidate the jury’s determination.

Source:, “Wrongful termination: California court upholds oversized jury award,” Andrew J. Sommer, Feb. 10, 2014

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