Law Office Of Michael G. O’Neill, The Types of Cases We Handle
The Company Offers You Your Job Back, and You Don't Trust Them. What do you do?
Most people don't sue their employers.   Most people who are fired do not sue their employers.   Most suck it up and move on.   Those who do sue have usually gone through some very bad or unfair treatment, be it harassment or discrimination.   While losing a job can be economically devastating, I find that the emotional trauma of the harassment or discrimination is often as upsetting, or more so, than the actual job loss.   It is not surprising, therefore, that when I ask whether the client wants his or her job back, the usual reaction is emphatically negative.   Either the client would find it emotionally difficult to return to the environment or the client does not trust the company and believes that it will eventually find some pretext to fire her.   As is more of than not the case, the client's instincts are accurate.   Unfortunately, as is also often the case, the Supreme Court is out of touch with the realities of the workplace.

In its infinite wisdom, the Supreme Court has ruled that, if a company that is being sued for discrimination after firing an employee offers a job to the employee, the employee loses the right to claim for back pay if he or she refuses the job.   As with most bad Supreme Court decisions, there is some logic to it.   The logic is that if you are complaining that you are not getting paid because you lost your job, and if you turn down the chance to receive a paycheck, why should the company still be on the hook for the back pay if you eventually win your lawsuit?  

In every wrongful termination case, you have an obligation to mitigate your damages, which just means in plain English that you have to look for a job.   The law does not permit you to sit at home and count on winning your lawsuit as a substitute for having a job.   So if you are offered a job and refuse it, then, the logic goes, your losses are caused by you turning down the job and not by anything that your former employer did.   No question that makes sense.   Up to a point, and that point is when the company that offers you a job is the same company that screwed you over in the first place.   Then it does not make sense.  

In practice this does not happen very often.   For starters, the company is also taking a big risk, because it is setting itself up for a retaliation case if problems develop down the road.   In fact, most employers when they settle these cases insist that the employee not even apply for a job with the company in the future.   So more often than not, and there are exceptions, but usually when such an offer is made, it is not made in good faith.   It is usually made with some strategic or tactical purpose in mind.

So the dilemma is that if you accept the offer, you may be walking into the lion's den.   But if you turn it down, you may be hurting your lawsuit.   That's why it is so important to have an experienced attorney advising you who knows how to navigate these difficult scenarios.   There are ways to counteract an offer made bad faith and to protect yourself from being penalized in your lawsuit.  

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