Can Employers Pay Less Severance If Employees Fail To Mitigate?

Successfully proving employees' failure to mitigate can save companies considerable amounts of money. The employer receives a dollar-for-dollar credit for income earned during the notice period, or income which could have been earned had the employee acted reasonably. However, failure to mitigate is difficult to prove because the duty is generally misunderstood.

As a result:

• Employers should thoroughly analyze an employee's mitigation efforts; and

• Employers should proactively participate in the employee's job search efforts.

An employee's duty to mitigate is not a duty owed to an employer, but rather a duty the employee owes to themself, to conduct themself like a reasonable person and take the necessary steps to find alternate, comparable employment once dismissed.