In the event an employer breaches an employment contract, the terminated employee is obligated, unless excused by a provision in the employment contract, to mitigate damages by using reasonable and diligent efforts to secure other employment.
Whether an employee has fulfilled his obligation to mitigate turns on the reasonableness and diligence of the employee’s efforts and the similarity of new employment. The duty to mitigate requires that an unemployed former employee read the placement advertisements, registered with employment agencies or online employment services, and pursued reasonable leads in the search for employment.
A former employee is required only to make reasonable efforts. He or she is not held to the highest standard of diligence and need not be successful in finding other employment in order to establish reasonable diligence.
To prove a former employee failed to mitigate damages, a former employer must show that the former employee failed to exercise reasonable diligence to mitigate his or her damages, and there was a reasonable likelihood that the former employee might have found comparable work by exercising reasonable diligence.
Former employers are relieved of an obligation to prove the availability of comparable employment when the evidence shows the former employee made no reasonable efforts to find new work. Comparable employment is that which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions and status as the previous position. The former employee is not necessarily required to accept lesser employment or relocate.
A portion of our practice includes the representation of both employers and employees in employment disputes, including breach of contract matters. Please call us if you have a question or need legal assistance in connection with any employment issue.