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Recently, our employment attorneys addressed the types of compensatory and punitive damages that wrongfully fired employees have available to them. (Best Law Read: What Kind Of Damages Can You Get For Wrongful Termination And Discrimination?; What Damages Can I Get For Wage Violations And Retaliation Under FLSA?). Today, we turn our attention to the economic damages of back pay that are available for wrongful termination claims under all the employment statutes, including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the Age Discrimination in Employment Act of 1967 (“ADEA”), and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

Economic damages for wrongful termination under these employment rights statutes are typically divided into two categories: (1) back pay and (2) front pay, which is covered in another blog. (Best Law Read: Can I Get Front Pay After Being Wrongfully Fired?

What is backpay?

Best Wrongful Termination Lawyer Answer: Back pay is the amount of salary and other benefits that an employee is owed between the date of the wrongful termination and the end of the trial or until the damages end. The mathematical calculations are straightforward while the wrongfully fired employee is still reasonably looking for work: the amount of salary and benefits multiplied by the time the wrongfully fired employee was out of work. This is essentially wage and benefit continuation.

If the unlawfully fired employee accepts a new job making less, the right to back pay continues but the court will subtract the amount actually earned by the employee in the new job. This is commonly referred to as a wage differential. The law expressly provides: “Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e–5(g).

For example, when an employee is wrongfully fired from a job making $20 per hour while working 40 hours per week and accepts a new job five weeks later making $15 per hour working similar hours, that employee will get five weeks’ pay of $800 per week plus $200 ($800 old job pay minus $600 new job pay) through trial.

In Albemarle Paper Co. v. Moody, 422 U.S. 405, 405–06, 95 S. Ct. 2362, 2366, 45 L. Ed. 2d 280 (1975), the United States Supreme Court held: “Given a finding of unlawful discrimination, backpay should be denied only for reasons that, if applied generally, would not frustrate the central statutory purposes manifested by Congress in enacting Title VII of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.”

Who decides the issue of backpay – the judge or the jury?

Best Employment Trial Attorney Answer: That will depend on the type of case.

In most Title VII cases dealing with a wrongful termination, the judge, not the jury, will make this decision. Courts have held that because back pay is considered equitable relief, as opposed to legal relief (such as compensatory or punitive damages), the issue is a matter of law for the Court to decide. See Albemarle Paper Co., 422 U.S. at 416, 95 S.Ct. 2362. Specifically, “Title 42 U.S.C. § 2000e–5(g) leaves to the discretion of the trial court the amount of back pay to be awarded a successful plaintiff in an employment discrimination action.” Whatley v. Skaggs Cos., 707 F.2d 1129, 1138 (10th Cir. 1983). However, the issue of backpay can be submitted to the jury by agreement of the parties. See Fed. R. Civ. P. 39(c).

However, in FMLA and FLSA cases, most courts to consider this issue have held that the jury gets to decide the issue of backpay. In Frizzell v. S.W. Motor Freight, 154 F.3d 641, 643–44 (6th Cir.1998), the United States Court of Appeals for the Sixth Circuit held that the structure and the legislative history of the FMLA made it more closely aligned to the FLSA, which courts have “uniformly interpreted” the remedial provisions of the FLSA to provide a right to a jury trial. Id. (citing Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 347, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998)). In doing so, the Sixth Circuit held that because Congress intended the remedial provisions of the FMLA to mirror those of the FLSA, Congress had intended to provide a right to a jury trial under the FMLA as well. Frizzell, 154 F.3d at 644. It further held that lawyers should not rely on Title VII case law “[b]ecause the FMLA’s link to the remedial provisions of the FLSA is stronger than it is to Title VII.” Id.

What is my wrongful termination claim worth?

Top Employment Law Firm Answer: Every claim for being wrongfully fired is different. There are a lot of different types of damages that are available with back pay being only one of those types of damages. Consulting an experienced employment law attorney to review the facts specific to your case is your best option, especially when there is no cost to do so and no risk. (Read: What is the Spitz No Fee Guarantee?)

If you are searching “I need a lawyer because I have been wrongfully fired or terminated;” or “I have been discriminated against or harassed based on my …” race, national origin, gender, age, religion or disability; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation. Call our lawyers in Cleveland, Columbus, Detroit, Toledo and Cincinnati to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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