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Wrongful termination: Your duty to mitigate your losses

West Virginia's Wage Payment and Collection Act imposes an expectation on employees who have been wrongfully terminated to mitigate their own damages through "reasonable diligence." In practical terms, what does that mean?

You're expected to try to find the same or comparable employment as soon as possible. If you don't, the court will reduce any part of your settlement that represents future wages by whatever it believes you could have earned if you'd tried.

It's important to keep in mind that "the same or comparable" employment could mean several different things, depending on your situation. If you are a general laborer, you would be required to try to find a job that's at your level of skill. The exact industry need not be the same as the one you left, since general labor is usually a skill that's transferable to a wide variety of industries. That may mean taking a job that you prefer less to the one you had, if the pay is sufficient and you can do the work.

If you have a highly technical set of skills that only apply to a specific industry, you wouldn't be required to accept a lesser job in a different industry simply to acquire a paycheck.

You do not have to go to extreme lengths, however, to find a suitable job. If there are currently no jobs in your area that you're qualified to do, you wouldn't be expected to look for work in another city just to show reasonable diligence.

You do, however, need to continue searching for a job even if you believe that you won't be hired. For example, if you are pregnant, it might be reasonable to assume you aren't going to get hired easily, but you still have to put in the effort as long as you are able.

You also need to keep careful records of your efforts. If much of your job searching occurs online, print out screenshots of searches, applications and communications you sent or received and keep them in a file. That way, you can prove your efforts if challenged.

The burden of proving a lack of reasonable diligence on your part falls to your former employer, but you don't want to make that task easy, so take the necessary steps to protect yourself. If you have further questions about your obligations after a wrongful termination, consider speaking with an attorney.

Source: West Virginia Legislature, "West Virginia Code Chapter 55. Action, Suits and Arbitration; Judicial Sale. Article 7E. Duty to Mitigate Damages In Employment Claims," accessed Jan. 30, 2017

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