Hi, I’m Jamie Gilmore, an employment attorney with Bailey & Galyen. Following a workplace termination, it is normal to feel betrayed, embarrassed, and angry. You may be confused about what your options are or what steps to take next. Consulting an attorney is an important first step to confronting and resolving those feelings.
One of the first steps I recommend, after contacting me, is to file for unemployment. It is important to minimize your lost wages and damages from your termination. Not only is it a practical consideration, it is also a legal requirement in employment cases. This is called the duty to mitigate damages.
The duty to mitigate damages is an ancient legal principle. It provides a duty on an employee to use reasonable means to minimize the damages it seeks to recover in the lawsuit. It may seem counter-intuitive, the general rule in employment lawsuits is that the employee must use reasonable diligence to mitigate damages by seeking other employment.
You are obligated to search for employment comparable in pay and responsibility to your position at your employer. You cannot let your damages accumulate and hope that you will recover the full amount of your lost pay at trial or in arbitration. If you fail to search for new employment or if you are unavailable for work during a period of time, you will not be able to recover your lost earnings for that period. This legal duty is known as the duty to mitigate damages.
The employer’s attorney will seek to discover what steps you have taken to obtain new employment, and he or she will ask you detailed questions about the following matters:
Where you have searched for employment; The positions you have sought, applied for or inquired about; The name of each individual with whom you have spoken about a particular position; Each response you received from your employment applications; Whether you were interviewed; The results of the interview; Whether you rejected any employment offers and, if so, why.
Further, your employer’s attorney will inquire whether you have prepared a resume to submit to potential employers. You will be asked whether you have registered with an employment referral agency. In short, you will be asked about every single action you have taken since your termination to find suitable replacement employment.
So what does that mean for you? It is imperative that you keep a list of every position for which you submit an application. You should keep a list of each employer or contractor whom you contact, the date you did so, whom you contacted, the position you sought, and the starting salary for the position if known to you. In all likelihood, you will not actually be interviewed for every position you seek. If you know the starting salary of the position and you are interviewed, that information is also important.
You may receive a sum of money as a result of your claims against the your employer, but ultimately this case will be judged by a jury of your peers. It is imperative that the jury believes your version of relevant events. You must maintain your credibility by acting in an honorable manner in all of your endeavors.
At Bailey & Galyen, we offer free consultation with experienced employment attorneys and staff to give you a legal assessment and offer a path forward. Call me to discuss your employment situation today.
