The duty to mitigate is a well-established contract principle. Simply put the duty to mitigate places a legal obligation on an injured individual to minimize the effects and losses resulting from the injury. The common example used to illustrate this is a homeowner and contractor roof repair example. For instance, if a faulty roof was installed and there was a leak. The homeowner would need to have had the roof repaired to avoid interior damage instead of letting the water continue to destroy the property and later seek those damages from the contractor. If the homeowner did not repair the leaking roof and later asked for damages in court. The court would reduce the homeowner’s damages for failure to mitigate and the award would only be issued for damages caused by the contractor without the additional damage incurred by the homeowner.
Employment cases take a similar course. If one has unlawfully been terminated from a job, they have likely sustained damages for loss of income. The aggrieved employee must mitigate his or her damages by seeking comparable employment. What is comparable employment as one might ask? Comparable employment has been defined by courts to include any employment that is substantially similar to prior employment, which would include the industry, job position, job type, seniority, distance, and similar pay. Like the homeowner contractor situation, if the aggrieved employee did not look for a job and waited for his case to settle, the court would consider whether the aggrieved employee sought comparable employment. In the event, the aggrieved employee did not seek comparable employment, the aggrieved employee’s damages would be decreased.
The question that often arises is whether an aggrieved employee is expected to take a lower-paying position if, for instance, his job efforts were fruitless in finding so-called comparable employment. The court has not provided a definitive answer. However, two federal courts have held that although an employee is only obligated to look for comparable employment. There comes a time when the employee needs to “lower his sights” by looking for work that could be of lower pay. Specifically, there comes a time when a reasonable employee should look outside of comparable work when his efforts are fruitless after some time. Although one must caution, if a lower-paying job is taken too soon after termination, the aggrieved employee may be subject to a damage reduction on the ground that he willfully incurred a loss by accepting an “unsuitably” low-paying position.
The aggrieved employee must look for a job while suing for wrongful termination; however, the jobs must be comparable to his or her former employment. Only after the aggrieved employee has been unsuccessful in finding a comparable job for some time, will he or she need to start looking for jobs that are different from his or her former employment.