Duty to find employment or comparable employment after employment termination?

What is the standard? Here are two attorneys with differing opinions:

Concerning a workers compensation claim:...In addition, you should start keeping a daily log, in a spiral bound notebook, of all the job searches you undercut after you have been fired. This is important because after you are fired, you have a duty to "mitigate" your damages. This means that you have a duty to go and look for other work. If you do not, you may be precluded from obtaining recovery of money damages for lost wages. This does not mean that you have to be successful, but you have to show that you have been diligent in seeking other employment.

In ADA case: Back Pay
This is the most common form of relief.
Includes the value of wages, salary, and fringe benefits the claimant would have received during the period of discrimination from the date of termination/failure to promote to the date of trial or settlement.
You have a duty to mitigate these damages by taking reasonable efforts to find comparable employment after you have been terminated.

Backdoor to Duty to mitigate damages in employment termination case

In a whistleblower case over Pfizer Inc.’s alleged illegal marketing of human growth hormone Genotropin, a judge has denied Pfizer Inc.’s bid to force a former executive to turn over information as to whether he made adequate efforts to look for work after he was fired.

The defense argued that the plaintiff's sizable assets created a situation where the plaintiff did not have to work. Accordingly the defense argued that because of his assets, he had failed to mitigate his damages by finding employment. Pfizer's attorney wanted the court to order the plaintiff to turn over financial information.

The court denied the motion

See:

Excerpt From, Ex-Exec Can Shield Info In Pfizer Whistleblower Spat:

The plaintiff's economic expert has calculated the plaintiff's economic losses for the period after his termination at over $9 million. In an effort to determine whether Rost fulfilled his duty to mitigate his damages by making adequate efforts to look for work after he was fired, Pfizer had sought documents and deposition testimony that would reveal Rost's assets during the period after he left Pfizer.

The company said the existence of significant assets could explain Rost's "lackadaisical attitude toward finding meaningful employment.

Measuring undocumented Mexican worker wages: Collecting information

For Mexican undocumented worker cases, specialized and more specific work life expectancy estimates for the injured or deceased worker can be constructed using the methodology in research such as: 'How Long Do Mexican Migrants Work in the U.S.?', Journal of Forensic Economics 19(2), 2006, pp.217-229.

However there is some data and information that must be collected about the deceased or injured undocumented worker that is not routinely collected in injury and death cases. The check list of items to collect in undocumented worker cases is below.


* Gender
* Age
* Maritial status
* Years of education (home + U.S)
* Does the worker have familiy in U.S.?
* Was the injured or deceased involved in sports or social organizations prior to the injury?
* Injured or deceased does not BOTH speak and read english
* Individual was earning more than minimum wage at time of injury
* Person is legalized or authorized worker
* City in U.S. in which they lived
* Date of migration
* Total years in U.S

Discrimination damages vs.Retaliation damages

Is the defendant's economist failure to mitigate analysis under-estimating the plaintiff's losses in the employment termination case?

In employment termination cases one tactic of defense attorneys is to use labor economists and vocational experts to assess the plaintiffs ability to obtain replacement employment that pays as much or more than they recieved while employed with the defendant.

Typically, the analysis reveals that the damages for the indiviual plaintiff are cut off immediately or relatively soon after the date of trial. They will typically not go on until retirement.

In case where the plaintiff is claiming retaliation by the employer, the damage calculation by the defendant's economist may under estimate the damages. In these types of cases, the defendant's economist needs to examine not only the jobs that they can get but they also need to explore the jobs that the plaintiff may have been able to get had they not been retaliated against. In some instances, the allegations are that the defendant put the word out that the plaintiff is not a good worker and caused them to lose out on job opportunities.

As a consequence, one approriate measure of the damages may by the difference between the jobs that were foregone (as a result of the defendants actions) and current employment. These types of damages may be estimated to go further into the future.