NY Employment Law -- What is the Duty to Mitigate?

If your employment has been unlawfully terminated, you may be entitled to recover damages in a variety of forms, including front pay.  Front pay is pay to a former employee for monies that he/she would have earned, but for the unlawful termination of employment. However, an employee who was unlawfully terminated cannot just sit at home and wait idly to collect front pay.  The law imposes what is called a "duty to mitigate," which means that the employee has the duty to mitigate his or her losses. If an employee fails to look for work, he/she will not be eligible for an award of front pay during any period in which he/she is not actively seeking work.  The phrase used by the courts is that the employee must be "ready, willing, and able" to obtain employment.  If, instead, the employee elects to stay home, he/she is considered to have withdrawn from the job market and, as a result, is ineligible to receive an award of front pay.  However, if the employee makes constant and good-faith efforts to seek similar employment, he/she is eligible to receive front pay if victorious at trial.

The cases are very fact specific and difficult to predict.  However, at least one thing is settled -- an employee who makes no attempt to look for work after an allegedly unlawful termination is deemed to have voluntarily withdrawn from the job market and is ineligible for an award of front pay for that time.  If you have any questions about your NY unlawful termination or the duty to mitigate, please contact us.