What Damages Are Available In A Wrongful Discharge Lawsuit

When contemplating a lawsuit against your former employer, it may be helpful to know what type of damages are available if you win. The answer to that question will depend somewhat on the nature of the lawsuit and the law or laws that are involved. For example, some statutes, like the Family and Medical Leave Act and Fair Labor Standards Act (governing minimum wages and overtime) have double damages provisions.

But in general, the damages that can be claimed for most types of wrongful discharge include the following: lost wages, lost fringe benefits, attorney fees, interest and litigation costs. Employees are generally unable to collect for pain and suffering, even though these damages are available in a personal injury case.

Damages are usually calculated from the date of the employee's discharge to the date of trial. For example, an employee who was earning $40,000 per year and whose fringe benefits, such as health and life insurance, were worth an additional $10,000 per year, and who was unemployed for 14 months between the date of her discharge and the date of trial, would calculate his damages as follows:

$50,000 per year / 12 months = $4,167 per month
$4,167 x 14 months = $58,338

An employee is often also entitled to reinstatement to her old job if she wins at trial. Occasionally, a judge will order "front pay" instead of reinstatement. Front pay is lost wages from the date of trial to some point in the future. The length of front pay will depend on the employee's age and how long it may take for the employee to reach the wage level or salary that she was earning had she not been wrongfully discharged.

An employee is also obligated to try to reduce or "mitigate" damages by looking for comparable employment. If an employee is offered a comparable position, but refuses to accept the position, the employee's right to future damages may be cut off.

It is the former employer's burden to prove that an employee failed to mitigate damages. To rebut the employer's claim that the employee did not properly mitigate her damages, the employee should keep track of all positions applied for. The employee should keep a spreadsheet or chart showing the date she applied for a position, the name of the company to whom the application was submitted, a description of the position and the result (example, not hiring or no response).

If an employee does find a new job between the date of discharge and the date of trial, the earnings from the new job will be subtracted from the earnings that the employee could have been expected to earn had she not been fired.

Using the example from above, if the employee had found a job making $25,000 a year and no benefits six months after she was fired, her damages would be reduced by the income from the new job. The reduction would equal $2,083 per month x 8 = $16,664. The new wrongful discharge damage figure would be $58,338 - $16,664 = $41,674.