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Front Pay: When is it Appropriate?

On Behalf of | May 8, 2013 | Wage: Minimum Wage, Wage: Tipped Employees |

As the attorneys at Spitz, The Employee’s Law Firm know, damages in most employment-related claims are generally based on back pay. Back pay represents the compensation the employee would have earned through the date of judgment but-for the wrongful termination. In some cases, however, courts also award the plaintiff front pay. Front pay represents the compensation the employee would have earned subsequent to the date of judgment but-for the wrongful termination.

Front pay is an equitable remedy courts may award when it is determined reinstatement is no longer feasible. As the U.S. Court of Appeals for the Eighth Circuit stated: “Front pay is a disfavored remedy that may be awarded in lieu of reinstatement, but not in addition to it, where the circumstances make reinstatement impractical.” In other words, awards of front pay are substitutes for reinstatement. However, awards of front pay are always at least partially speculative as they necessarily rest upon predictions and assumptions about a plaintiff’s longevity, the likely duration of any future employment, the continued viability of the employer, ongoing efforts at mitigation, and many other factors.

The case of Dollar v. Smithway Motor Xpress provides a nice example of how awards of front pay work. In Dollar, the plaintiff, Christine Dollar, suffered from severe depression. Dollar’s depression required extensive medical treatment and even hospitalization. She had notes from her doctor indicating that she was being treated for depression and could not return to work. The defendant, Smithway, did not tell Dollar about her eligibility for job-protected medical leave under the Family and Medical Leave Act (FMLA). Additionally, Smithway did not keep Dollar’s job open for her while she was receiving medical treatment. Smithway terminated Dollar for missing too many days of work.

In Dollar’s FMLA retaliation lawsuit against Smithway, the trial court found that Dollar was a qualified employee entitled to FMLA leave. It further found that Dollar’s presentation of medical excuses from her doctor constituted an adequate assertion of FMLA rights. As a result, the court held that Smithway had interfered with Dollar’s exercise of her FMLA rights when it terminated her with knowledge of her serious medical condition.

The trial court awarded Dollar back pay to the date of the judgment in the amount of $80,793. It awarded statutory liquidated damages in the same amount. Finally, the court awarded front pay for a period of ten years in the amount of $134,526.

On appeal, the Eighth Circuit vacated the trial court’s award of front pay. The court reasoned that given the facts of the case and the equitable nature of front pay, the trial court’s award of front pay in this instance was overly speculative.

If you believe that your employer has interfered with your exercise of FMLA rights or has retaliated against you based on your exercise of those rights, call the attorneys at Spitz, The Employee’s Law Firm today for a free and confidential initial consultation.

If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.


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