Employers often seek to reduce an employee’s damages in a wrongful termination case by the amount by which the employee mitigated, or could have mitigated, his or her damages. Before the employee’s earnings from the replacement job will be applied in mitigation, employers must be able to prove that the replacement job was comparable to the employee’s lost job. This means that wages from the replacement job will not be used to reduce the employee’s lost wages in a wrongful termination lawsuit when the employee’s new job is different or inferior.

In Villacorta v. Cemex Cement, Inc., 221 Cal.App.4th 1425, (2013), Cemex Cement, Inc. (“Cemex”) laid off Alfredo Villacorta (“Villacorta”) and hundreds of other employees. Villacorta sued Cemex for wrongful termination. Villacorta alleged he was terminated based on his race (Filipino). Villacorta found a new job eight months later. However, the job was not local. His commute to the new job was approximately four to six hours round-trip depending on traffic, so Villacorta rented a room closer to his new employment and only returned home to his family on the weekends. Villacorta prevailed in his wrongful termination lawsuit against Cemex approximately three years after his termination, and was awarded three years of salary (approximately $198,000) instead of eight months of salary (approximately $42,000) as damages. The Court of Appeal upheld the award because the replacement job was inferior in that Villacorta was not able to see his family during the workweek and had to pay for two residences – one for his family and one for himself – during the week.

In today’s tough economy and job market, layoffs, reductions in force, and terminations may be necessary and comparable replacement work might not be readily available to former employees. This case serves as a reminder to ensure that layoffs, reductions in force, and terminations are handled properly and are well documented. Employers should remember that they cannot rely on different or inferior re-employment to mitigate wrongful termination damages, and might consider offering severance packages for higher risk terminations.

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DID YOU KNOW…
Same sex heterosexual employees CAN sexually harass each other. Sexual motivation or interest is not a prerequisite to sexual harassment under the Fair Employment and Housing Act (FEHA). Heterosexual employees may be subjected to harassment because of sex if attacks on their heterosexual identity are used as a weapon of harassment at work. (e.g. harassing conduct insinuating straight employees are gay). Taylor v. Nabors Drilling USA, LP, 222 Cal.App.4th 1228 (2014).
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