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Damages (And Limitations of Damages) Generally Available in Employment Cases

The general categories of damages available in employment cases are specified by statute or common law (court decisions), depending on the type of employment claim. Typically, the types of statutory and common law employment damages that can be awarded include monetary damages (economic loss such as back pay, front pay, and benefits), compensatory and punitive damages. Compensatory damages can include payment for emotional distress, pain and suffering, and harm to reputation. Depending on the type of claim, other remedies include liquidated damages, injunctive relief and affirmative relief (such as reinstatement, accommodations. or retroactive seniority). Some statutes provide for the award of attorney fees, and attorney fees may also be available when punitive damages are awarded. It is important to note that statutory and common law limitations on damages can substantially reduce the amount of damages that can be awarded.

MONETARY DAMAGES

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BACK PAY

An award of back pay is calculated using the value of the employee’s base salary, and includes incremental pay increases the employee would have received, but for the employer’s unlawful conduct. Ohio Civ. Rights Comm. v. David Richard Ingram, D.C., Inc. 69 Ohio St.3d 89 (1994). The employee is not required to establish the exact dollar amount to prove entitlement to receive back pay. Petway v. American Cast Iron Pipe, Co., 494 F.2d 211, 260-261 (5th Cir. 1974). An award of back pay should include fringe benefits. Meadows v. Ford Motor Company, 510 F.2d 939, 948 (6th Cir. 1975). Fringe benefits include incentive pay, vacation, shift differential, and holiday pay. Falls Stamping & Welding, Co., v. International Union, 485 F.Supp. 1103 (N.D. Ohio, 1979); They also include unpaid life, disability, dental, health insurance, and pension benefits. Merkel v. Scovill, Inc., 570 F.Supp. 141, 145 (S.D. Ohio 1983).

Back pay is generally awarded from the date of termination (or other harm, such as failure to promote) until judgment or reinstatement. Suggs v. Servicemaster Educational Food Management, 72 F.3d 1228, 1233 (6th Cir. 1996). The back pay obligation will cease if and when the employee obtains alternate, higher paying employment. Ohio Civil Rights Commission v. David Richard Ingram, D.C., Inc. (1994), 69 Ohio St.3d 89, 92. Back pay is also a common law remedy for claims such as breach of contract, estoppel, quasi contract, intentional infliction of emotional distress, invasion of privacy, defamation, and violation of public policy. Federal and state statutes permitting a cause of action for wrongful discharge provide for the recovery of back pay, including Title VII, the ADA, the ADEA, the EPA, the FLSA, the FMLA, the Rehabilitation Act, the USERRA, and 42 U.S.C. §§ 1981 and 1983, and R.C. § 4111.10, R.C. Ch. 4112, R.C. § 4111.17, R.C. § 4113.15, and R.C. § 4113.52.

DUTY TO MITIGATE

Under federal and state law, an employee has a duty to mitigate lost wages by seeking new employment. Ford Motor Co. v. EEOC, 458 U.S. 219, 231 (1982). The obligation to mitigate damages requires that a claim for back pay must be reduced by the amount the employee earned or could have earned in alternate employment. State ex rel. Martin v. City of Columbus (1971), 58 Ohio St.2d 261, 264. However, ordinary effort to find similar, suitable employment in the same vicinity where the employee previously worked is sufficient to mitigate damages. State ex rel. Stacey v. Batavia Local School Dist. Bd. of Edn. (2005), 105 Ohio St.2d 476, 485-86. Title VII and R.C. § 4112 expressly provides for the reduction of allowable back pay by “interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against . . . .”  42 U.S.C. § 2000e-5(g); R.C. § 4112.05(G).

STATUTORY AND COMMON LAW LIMITATIONS ON DAMAGES

There are many statutory and common law limitations on the recovery of damages in employment cases. For example, the only damages recoverable under the FMLA and EPA, in addition to economic damages, are liquidated damages and attorney fees. Under Title VII, the amount of compensatory damages that can be recovered depends on the size of the employer: (1) $50,000 for employers of 15 to 100 employees; (2) $100,000 for employers of 101 to 200 employees; (3) $200,000 for employers of 201 to 500 employees; and (4) $300,000 for employers with 501 or more employees. 42 U.S.C. § 1981a (b)(3). The cap on damages recoverable under Title VII does not apply to an award of front pay, which is not compensatory damages.

Under Ohio law, while there is no limitation on the amount of actual lost wages that can be awarded (subject to the duty to mitigate damages and collateral source rules), an award of compensatory (non-economic) damages is limited to the greater of three times the amount of lost wages or $250,000. R.C. § 2315.18. The amount of punitive damages that can be awarded under Ohio law is not more than two times the amount of compensatory damages awarded for large employers, and for small employers (less than one hundred employees), two times the amount of compensatory damages, not to exceed 10% of the employers net worth or $350,000, whichever is less. R.C. § 2315.21. Damages for violation of R.C. § 4111.10 (Ohio minimum wage and overtime) are limited to the amount of unpaid wages and attorney fees.

ATTORNEY FEES

Many federal statutes provide for the award of reasonable attorney fees to a prevailing employee, including Title VII, the ADEA, the EPA, the FLSA, the ADA, ERISA, the FMLA, 42 U.S.C. § 1988, and numerous federal whistleblowing laws. Under Ohio law, statutes permitting the recovery of attorney fees include R.C. § 4111.10 (minimum wage and overtime), R.C. § 4111.17 (equal pay), R.C. § 4113.52 (whistleblowing), and R.C. § 4112.14 (age discrimination). However, attorney fees cannot be recovered for R.C. § 4112.99 discrimination claims unless punitive damages are awarded. Griffin v. Lamberjack, 96 Ohio App.3d 257, 266 (1994).