Mark Law Firm Blog

I was terminated, and am thinking about suing. What are my obligations?

Posted by Jamison Mark on May 8, 2014 1:03:00 PM
New Jersey Attorneys

The easy and quick answer is: ABSOLUTELY NOT! You are required by law to try, and use all reasonable efforts, to locate a new job. You are required to maintain records of your search for a new job. There are several issues to contemplate when looking for a new job, and you must make the decision to either accept or not accept an offer of employment.

An employee who has either been terminated or "constructively terminated" from employment has an obligation to mitigate their income by finding and using reasonable efforts to hold that job. The back-pay award is to place plaintiff in the same position he would he or she would have been in if not for the wrongful discharge, however, the employer is entitled to a "credit" for any income earned by the employee. It is an absolute requirement for an employee to locate comparable employment and you cannot merely sit by and wait for a pay day from defendant. While an employee is use to diligent efforts to obtain new employment, he doesn't have to accept the job offered. In fact, the employee is only required to find comparable employment however, if after a reasonable job search and passage of time no comparable job can be found, plaintiff must lower his sights and accept different work, even if at a distance with lower pay.

While rare, it does sometimes happen where the job makes an unconditional offer of reinstatement. When this occurs, and the offer is truly "unconditional" it means you do not have to abandon or compromise the lawsuit. What it does, however, is effectively stop your lost wages claim. Other times, you can't find a job, so you start up your own business. This is acceptable too. Self-employment means starting one's own business and is a acceptable form of "comparable" employment, unless your boss can prove otherwise. Your former employer is entitled, however, to a credit towards your loss wage claim for the amount of income that was generated from the new Self-Employment business. Typically, but not always, if you fail to demonstrate an Effort to find a job by either (a) taking one's self out of the job market, (b) going to full-time student status, (c) if you become disabled and unable to work, (d) withdrew from the market to take care of a family member, or (e) retirement, your claim for loss of pay may be significantly diminished.

Mark Law Firm, LLC can walk you through the complex steps of a possible discrimination or retaliation lawsuit and how to determine your loss wages and whether you properly mitigated your losses. For more information contact us at 908-626-1001 or 973-440-2311, or click the "contact us" page and tell us your story.

Topics: Wrongful Termination