​​​​How Mitigating Damage Rulings Could Be Impacted


 Each day, the media features new reports on how the economy continues to rebound.

The national unemployment rate fell to 6.3 percent in April 2014, down nearly half a percentage point from March’s rate, according to the Bureau of Labor Statistics. This figure is 1.2 percentage points lower than a year ago, and the lowest unemployment has been since September 2008.

The Dow is up over 16,000 points.  All signals point to a thriving economy, and a more favorable job market.

Yet back in October 2011, Nassau Lawyer published an article entitled: Employment Discrimination: Mitigating Damages In A Weak Economy (Russell Penzer, Partner with Lazer, Aptheker, Rosella & Yedid, P.C.).  In his article, Mr. Penzer cites a case in Michigan (Gardener v. Granadier Lounge) where the court rejected the employer’s position that plaintiff’s efforts to mitigate damages were inadequate due to the poor economy in Detroit and southeastern Michigan at that time.

This ruling did not consistently determine similar decisions in other states. In some decisions, the courts considered the length of time a wrongfully terminated employee was required to search for a comparable position before beginning to train for new expertise skills in a weaker economy.

A strengthening economy may well result in the courts’ higher expectations for efforts to mitigate. Vocational experts are often crucial resources in what is considered “reasonable” efforts and assessing employment capability; these often differ for various occupations or industries.

Vocational specialists know if and when retraining will expand employability opportunities and earning capacity that would limit damages.

 Four ways vocational experts help to assess the question “to search or to retrain?” as well as adequate efforts by the plaintiff to mitigate damages are:

  1. Reviewing how well (or not) plaintiff has demonstrated comprehensive job search methods – in person and online networking, job fair attendance, internet postings, call/outreach logs, scheduled follow up activity/results, and the corresponding dates.
  2. Reviewing plaintiffs primary skills compared to current job market trends and requirements.
  3. Comparing career/earnings capactiy in different job markets and industries.
  4. Whether updated skill training is beneficial and/or warranted in plaintiff’s case.
In any case, “the poor economy” excuse may now be offering less leeway to plaintiffs in mitigating damages decisions.