Most of the time, if an employee decides to talk to an employment attorney it is because they have been fired. And even if reinstatement to the employee’s old job is a possibility, often when they were fired for an illegal reason they are understandably afraid of returning to the lion’s den to face retaliation. But if you are an employee who was fired for an illegal reason and do not feel safe returning to that same employer (or your employer just refuses to take you back), it is critically important that you keep in mind your “duty to mitigate.” This article explores some key points of that means, why it is important, and what you can do to fulfill that duty
The point of any employment lawsuit is ultimately “restorative,” to put the employee in the same place they would have been but for the illegal actions of their employer. If feasible, that includes reinstating them to the position they lost. But reinstatement is not always feasible, and it alone does not always fully compensate an employee for what they lost. So, one major thing that most employment lawsuits usually ask for is compensation for lost wages (“backpay”) through the time of trial. However, courts will not allow an employee to artificially increase what they can get out of a lawsuit by tactically increasing what the employee has lost. Instead, courts impose a “duty to mitigate,” which means a fired employee who is asking for backpay in a lawsuit must make reasonable efforts to find and keep comparable employment.