Damages, realistically

Why this matters

You need a number for your demand, your settlement talks, and your testimony. A number you cannot explain line by line hurts you. A modest number backed by documents earns an arbitrator's trust. This chapter shows what each kind of claim can bring and how to build a worksheet. It cannot tell you what your case is worth, and no one can promise an award.

This is general information, not legal advice.

What each claim can bring

Federal leave law

Under the Family and Medical Leave Act, 29 U.S.C. 2617(a), an employer that violates the interference or retaliation provision owes these items.

• Lost wages and benefits. If no wages were lost, actual monetary losses such as care costs, capped at the statute's wage-based limit.
• Interest at the prevailing rate.
• Liquidated damages, which are an additional amount "equal to the sum of the amount described in clause (i) and the interest described in clause (ii)." In plain terms, that doubles the back pay plus interest. The employer can reduce it only by proving to the arbitrator that it acted in good faith and had reasonable grounds to believe it did not violate the Act.
• Equitable relief "including employment, reinstatement, and promotion."
• Reasonable attorney's fees, expert fees, and costs to a prevailing plaintiff.

The statute lists those categories. Emotional distress is not among them. Check the current case law in your circuit before you assume otherwise, but do not count on emotional distress under the federal leave claim.

The FMLA time limit is two years after the last violation, or three if willful (29 U.S.C. 2617(c) and 29 C.F.R. 825.400(b)). Your arbitration agreement may set its own limits, so read it.

State and city law

State and local anti-discrimination and retaliation laws often allow more. Many allow compensatory damages for emotional distress. Some allow punitive damages, and some add fees. Liquidated doubling usually attaches to the federal leave claim and to some wage claims, not to every claim. Apply it only where it applies. In New York, the state and city human rights laws are the usual route to emotional distress damages. Other states differ.

Punitive damages need a high showing of the employer's state of mind under the law that applies. Do not plan around them.

Front pay or reinstatement

If you cannot or do not want to return, an arbitrator may award front pay, which is pay for a period after the hearing. Reinstatement is the alternative. Each depends on the facts, such as how long you worked there, how hard it is to find similar work, and whether the relationship can be repaired. Ask for the relief that fits you, and be ready to explain why.

Emotional distress and your records

Garden-variety distress is the ordinary upset that follows a bad event. Claiming only that usually helps keep your treatment records private, though courts differ, and it also tends to hold the recovery to modest amounts. A claim built on a diagnosis can be larger, but it can waive your privilege and open your records. Chapter 7 explains the tradeoff. Make the choice early and keep it in every filing.

A related choice arises in disability claims. A theory that the employer treated you as disabled focuses on the employer's view, so your own condition stays out of issue. A theory that you are actually disabled requires proof of the impairment, which can waive privilege. The choice can also give up related claims. Think it through before you plead.

Mitigation

The employer carries the burden of showing that you failed to make reasonable efforts to find work. You should still search reasonably.

1. Keep a dated log of every application, interview, and contact.
2. Save the job posts, your resumes, and every reply.
3. Keep applying and keep the log current through the hearing.
4. Record any work you turn down and why.

A weak log invites the argument that you did not try.

Offsets

Earnings after your job ended reduce back pay. Count all of them, including part-time, temporary, and gig work, and severance. Leaving something out looks dishonest, and new work may also bear on any claim that you could not work.

Unemployment benefits may or may not reduce your award. This varies by law and forum. Show the number both ways until you know. Statements you made to an unemployment agency are evidence too, so keep them consistent with your claim.

Employers may also argue that misconduct they learned about later would have ended your job anyway. If they prove it, back pay can stop on the discovery date. Check your own history first.

Build a damages worksheet

Start early and update it. Every number needs a source.

1. Pick the start date, which is when the pay loss began, and an end date, which is usually the hearing date. Calculate a low and a high version.
2. List each line. Base pay, bonus, retirement or profit sharing, and benefits.
3. For each line, write the source. A pay stub, a plan document, a benefits letter, or an employer payroll record.
4. Use the employer's payroll numbers where forms disagree. Their own record is the hardest for them to dispute. Be ready to explain any gap between documents.
5. Benefits. Count what you actually lost. If replacement coverage was free or low cost, the loss is smaller. Document what you now pay.
6. Retirement or profit sharing. Read the plan for vesting rules and service credit. Recovery depends on whether you would have vested.
7. Subtract interim earnings, shown by month.
8. Add interest, then show liquidated damages as a separate line, so the arbitrator can see the effect of a good faith finding.
9. Keep emotional distress as its own line with its own basis. Do not mix it into pay figures.
10. Show unemployment benefits as an optional line until you know the rule.

Changes to your time records may or may not support a separate wage claim. That often depends on whether you were paid hourly or by salary. Even when they do not, unexplained changes can be evidence that the employer's stated reason is not the real one. Choose the theory that fits.

Stay realistic

• Awards often come in well below demands. Look at reported awards for your arbitrators if any exist.
• Fees depend on who represents you. A lawyer's fees may be recoverable under some statutes. Your own time as a self-represented party generally is not, so include fees only where the law allows them.
• Your claims may carry different values. Know which one drives the total.
• A range you can defend line by line beats a high number you cannot.

Taxes

Back pay is taxed as wages. Emotional distress is generally taxable unless it comes from a physical injury or sickness. See Chapter 13 for how the tax treatment affects a settlement and how allocation works.

Checklist

• Each claim matched to the damages its law allows.
• Worksheet built with low and high versions and a source for every line.
• Interim earnings subtracted, by month.
• Liquidated damages and emotional distress shown as separate lines.
• Job-search log current.
• Fees counted only where a statute allows them.

Check your state

• Which state and city laws apply to you, and what damages they allow, including emotional distress, punitive damages, and fees.
• Whether unemployment benefits reduce back pay in your state and in this forum.
• Mitigation rules and who bears the burden.
• Whether your state counts extra items, such as penalties on unpaid wages.
• Time limits for each claim, and whether your agreement shortens them.

The employer must usually prove failure to mitigate and the good-faith reduction of liquidated damages. Chapter 18 explains these burdens and how to hold the employer to them.

Next: Chapter 13, Settlement.

Sources

• 29 U.S.C. 2617 (FMLA civil action and remedies)
• 29 C.F.R. 825.400 (FMLA enforcement, general rules)
• AAA Employment Arbitration Rules
• AAA Employment Due Process Protocol