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Employment Law Blog

March 20th, 2016

BACK PAY

Blog by Folkerth Law

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.