Practical advice on mitigating damages
As experienced Texas employment lawyers, we make sure our clients understand their duty to mitigate damages and have the tools to help them do so.
What does it mean to “mitigate damages”?
Although it may seem counterintuitive, if you have filed a lawsuit seeking damages for wrongful termination, then you have a legal obligation to mitigate (i.e., minimize) your damages by diligently seeking employment that is “substantially similar” to your former job. Simply put, Texas employment law requires you to look for work; you cannot just sit back and wait for money from your lawsuit. This duty to mitigate does not require you to go into another line of work, or accept a demotion, or take a demeaning job; it does, however, require you to look for comparable employment and to accept an offer for comparable employment. The consequences of failing to mitigate damages are significant. If you fail to look for a new job or if you turn down a substantially similar job, then you will lose your right to recover the “lost wages” component of damages in your lawsuit.
Tools to help you mitigate damages
- Make reasonable efforts to find a new job. This means, for example, talking to friends and family about possible job openings; regularly checking the classified ads in local newspapers; creating a resume and posting it on internet job sites; regularly searching internet job sites; and contacting a headhunter, recruiting company or employment agency.
- Keep a record of your efforts. Create a chart to keep track of every time you inquire about a potential job, including: the date; the person/company you contacted; the means of contact (e.g., phone, internet, in-person); the job you inquired about; and the outcome. In addition to this catch-all document, keep a paper trail of your efforts. Save everything that pertains to your job search, including: the classified ads you review; all versions of your resume and cover letters; job applications you complete; a printout of every online search; all emails; and any letters or other correspondence from a potential employer.
Your mitigation efforts will be an important issue at your deposition. You will be able to provide strong, detailed testimony if, from day one of your job search, you create a record-keeping system and you update it regularly.
Contact Leaders in Employment Law
If you have questions about whether you have made a “reasonable” effort to find a new job or whether a particular job is “similar” to your former job, an experienced Texas employment lawyer will have answers. Use the Free Case Evaluation form to tell us about your situation, or call or email our office directly.