Damages – What can I Recover as Damages?

Recoverable Damages in an Employment Case

The purpose of damages in an employment case is to put an employee back in same place they would have been if it weren’t for the employer’s actions or inaction. There are several ways a court tries to accomplish this goal, a non-exhaustive list of which can include back pay, front pay, and punitive damages. To learn more about damages and your rights related to damages, please refer to the frequently asked questions/answers below. For more information on your specific employment issue, please contact the Ohio employment attorneys at Bryant Legal, LLC to discuss in more detail. You may utilize the contact form or call either the Columbus, Ohio or Toledo, Ohio office location.

1. If I win my case, what will I receive?

The damages a court can award depend on the type of claim. Damages include all of the financial and emotional losses a person suffers as the result of an employment dispute. The purpose of a damages award is generally to put the individual back into the same place they would have been had they not lost their job. In most federal and Ohio discrimination cases (depending on each unique set of facts), the employee is entitled to receive the following types of damages:

  • Back pay;
  • Front pay or future damages;
  • Lost benefits (e.g. health, vacation, sick leave, and pension;
  • Reinstatement;
  • Reasonable accommodations;
  • Compensatory damages;
  • Liquidated damages; and
  • Punitive damages.

2. Will I be able to receive all of the back pay that I would have earned had I not lost my job?

Back pay and benefits are among the types of damages most typically awarded in successful employment cases. Back pay includes all of the wages, salary, bonuses, commissions, and benefits lost because of an unlawful dismissal or discrimination, minus any amount the employee was able to earn in the interim. This offset is known as “mitigation,” which basically means your efforts in an attempt to limit your damages (discussed below).

Back pay includes much more than your salary or wages. It includes interest, overtime, shift differentials, and raises you would have received. The value of employer-provided housing lost because of the discrimination is part of a back pay award. Back pay is calculated from the date of the discrimination or job loss to the date of the court’s decision.

3. Will I be able to receive all of the benefits that I would have earned had I not lost my job?

All of the benefits an individual lost because of the discrimination or unlawful action are included in the amount of back pay. For example, you should be paid for unused earned vacation time plus vacation time accrued up to the court’s decision. If your company allots a certain number of sick days per year, you are entitled to the value for the number of unused sick days you have earned. If the company pays for health or life insurance benefits, you should receive the value of the premiums or benefits the company would have paid had you continued to be employed. Your former employer may also be required to pay any unreimbursed medical expenses which would have been covered by the employer’s health plan.

Back pay also includes all forms of pension benefits that you have earned or accrued. Adjustment to pension benefits made during the time period of your case would also be included. Essentially, anything that was part of the compensation and benefits provided by your employer may be part of the back pay award.

4. Can I get my job back? (“Reinstatement”)

Reinstating employees into the jobs they lost is the preferred remedy by courts in discrimination cases, and may be a remedy in other kinds of cases as well. Sometimes, however, courts will not order reinstatement because of the now-hostile relationship between the former employer and employee, or because there is no longer a job available. As a result, employees can pursue what is commonly referred to as “front pay” (see below).

5. What damages can I receive if I am not reinstated to my previous position?

If a court believes that reinstatement is not appropriate given the circumstances, it generally awards “front pay,” which is the amount of compensation and benefits the court views necessary to make up for the difference in pay that the employee would have earned in the future. The amount of front pay depends on how long the court finds it will take the employee to return to the same level of pay that he had when he was terminated. Front pay includes all lost benefits, just as back pay does.

6. What are “compensatory” damages?

The purpose behind compensatory money damages is that they are intended to make you “whole.” Compensatory damages are also called actual damages. In employment cases, they refer to the damages that are harder to measure, such as the following:

  • Emotional distress
  • Pain and suffering (such as grief, fright, anxiety, humiliation, and depression)
  • Permanent disability
  • Mental impairment
  • Medical bills

In employment discrimination cases brought under the federal anti-discrimination law, Title VII, the compensatory and punitive damages (but not back pay) that a jury could award to plaintiffs for discrimination are capped. If the employer has:

  • 15-100 employees, the cap is $50,000
  • 101-200 employees, the cap is $100,000
  • 201-500 employees, the cap is $200,000
  • 500 employees and up, the cap is $300,000

Other types of cases may not be subject to these caps.

7. What are “punitive” damages?

Punitive damages are damages awarded in cases of malicious wrongdoing to punish or deter the wrongdoer or deter others from behaving similarly. In employment cases, punitive damages are designed to punish the employer and make it an example for others, where it can be shown that the employer intentionally discriminated with malice or reckless indifference.

Despite a popular misconception, the employer’s conduct need not be “egregious” to allow an award of punitive damages. It is not the seriousness of an employer’s conduct that governs whether punitive damages will be awarded, but its intentions: did the employer “discriminate in the face of a perceived risk that its actions will violate federal law.” At bottom, it must be determined whether the employer knew that a particular action was discrimination that was against the law, and still decide to do it anyway?

Employers who adopt an anti-discrimination policy, effectively enforce the policy, and thoroughly document the policy’s strict enforcement may use the policy as a “good-faith” defense against punitive damage awards, as well as decrease the likelihood that discriminatory conduct will occur in the first place.

Punitive damages are not available against the federal, state or local governments, but only against private employers. Punitive damages are very rarely awarded by courts. Many employers choose to settle cases in which their exposure to punitive damages is significant, to avoid the potentially large financial liability as well as the negative publicity resulting from a public award of punitive damages imposed by a jury.

However, in the event punitive damages are awarded, the amount can be significant. The combination of punitive and compensatory damages is capped in federal discrimination cases under Title VII according to the employer’s size. These caps may not apply, however, to cases brought under laws other than Title VII.

8. What are “liquidated” damages?

Liquidated damages are referred to as a type of punitive damages, where the penalty amount for a proven violation of a law or a contract provision is designated in advance.

Under the law, a penalty amount such as “double damages” or “treble damages” is a common liquidated damages penalty. For example, while the Age Discrimination in Employment Act (ADEA) and the Fair Labor Standards Act (FLSA) do not provide for punitive damages, liquidated damages of up to twice the amount of back pay may be awarded in the event of a “willful” violation, if the employee proves that employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute.

Under the FLSA, liquidated damages are considered the norm and are presumed. However, if and only if an employer shows that it acted in good faith and that it had reasonable grounds to believe that it was not violating the FLSA, a court may in its discretion limit the amount of liquidated damages. Importantly, it i the employer’s burden to prove it acted in good faith and its actions were reasonable.

Liquidated damages provisions are also common in contracts. For example, if you settle your lawsuit against your employer with a confidentiality provision, which requires you to keep the amount and certain facts about the resolution of your case a secret, the settlement agreement may have a liquidated damages clause which requires you to pay the employer a pre-designated amount for violating the agreement.

9. What do I have to do while my case is pending in court or with an administrative agency?

In employment cases, you must make a good faith effort to reduce the money that you have lost in wages because your former employer caused you to lose your job. These efforts are referred to as “mitigation” of damages. As a discharged worker, you have two obligations:

  • to make reasonable efforts to find employment; and
  • to accept employment of a “like nature,” if offered.

If the other side can convince the judge or jury that you did not do what was reasonable, you could win your case, but still be awarded only one dollar (called “nominal damages”). However, if you did reasonably look for other work, you will not be denied damages for lost wages just because your efforts were unsuccessful and even if your efforts could have been “more exhaustive.”

10. How much is my case worth?

It depends on the type of claim, which can be clarified after speaking with an employment attorney at Bryant Legal, LLC. Typically, the underlying damages award depends on how much the individual made during his or her employment. In most cases, employees who have lost their jobs due to discrimination are entitled to their lost wages and benefits. Employees can also seek punitive and compensatory damages in cases alleging discrimination based on race, sex, religion, national origin, color, creed, or disability under Title VII. The employee must prove that the employer engaged in a discriminatory practice with “malice or with reckless disregard” for the employee’s rights. Intentional actions by an employer causing the embarrassment, mental distress or humiliation of a person because of race or sex will support an award of punitive damages. An employer’s failure to take action to protect employees from racial or ethnic slurs of fellow employees can also entitle the employee to punitive damages. As referenced above, there are dollar limits on the amount of punitive and compensatory damages that can be awarded in cases alleging discrimination based on race, sex, religion, national origin, color, creed, or disability under Title VII.

In other cases, e.g. the federal Age Discrimination in Employment Act (ADEA), the Equal Pay Act, and the Family and Medical Leave Act, individuals who win their cases and prove that the discrimination was “willful” can get liquidated damages, which is double the back pay award. Employees alleging retaliation under federal statutes can also get compensatory damages.

11. Are my attorneys’ fees covered?

If you win your case, Yes. Under the federal discrimination laws and Ohio’s laws prohibiting discrimination, the employer must pay your attorneys’ reasonable fees if you prevail in your case. This prevailing party provision under federal and Ohio laws prohibiting discrimination is in place because, under normal circumstances, terminated employees do not have money lying around to pay an attorney at an hourly rate. As a result, attorneys can be retained on a contingent basis (no payment of attorney fees unless an amount is recovered).

12. What other damages can I recover while my case is pending?

Due to the fact that legal action often takes over a year (often longer) to really address the merits of the case, courts typically award prejudgment interest as an essential part of the back pay award. Prejudgment interest serves to compensate for the loss of the use of money you would have had absent the discrimination or loss of your job. The courts have substantial discretion in the calculation of prejudgment interest, including the interest rates to apply and the manner of compounding the interest.

For more information about your damages, the employment attorneys at Bryant Legal, LLC are happy to discuss your employment matter with you. Please utilize the contact form or call either the Toledo, Ohio or Columbus, Ohio office location to schedule a free initial phone consultation.

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