Chapter 28 - EXHIBIT 28G • SAMPLE MITIGATION OF DAMAGES LETTER

• Jurisdiction: Colorado

EXHIBIT 28G • SAMPLE MITIGATION OF DAMAGES LETTER

March 17, 20___

VIA REGULAR MAIL AND EMAIL (name@domain.com)

Jane Smith
789 Anywhere Blvd.
Denver, CO 80000

Re: Mitigation of Damages
CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGED COMMUNICATION

Dear Ms. Smith:

The purpose of this letter is to provide you with information regarding your duty to look for new employment and the documentation you should be keeping related to your job search.

I. DUTY TO MITIGATE DAMAGES

The law requires that when an employee is discharged from his employment and states a claim for wrongful discharge, the employee has a responsibility to mitigate damages by attempting to find new employment. As a defense to claims brought against an employer by a former employee, employers often allege that the employee did not make a sufficient effort to mitigate damages in her attempt to find new employment.

In order for the employer to prove that the employee did not make a sufficient effort to obtain new employment, the employer must prove: (1) there were suitable positions, which the claimant could have discovered and for which the claimant was qualified; and (2) the claimant failed to use reasonable diligence in seeking such positions. While you are unemployed, your "job" is to engage in a thorough search for new employment and keep detailed records regarding your efforts. This job search is also necessary to support a claim for unemployment benefits from the State of Colorado. The minimal requirements of a documented job search as mandated by the Colorado Department of Labor and Employment to receive unemployment benefits do not satisfy the duty to mitigate when bringing a state or federal civil rights claim.

II. JOB SEARCH EFFORTS

It is imperative that you make a significant ongoing attempt to find new employment. It is also critical that you document every minute of time you spend related to your job search. This includes, but is not limited to, time spent creating and updating your resume, networking, applying for jobs, reviewing classified ads, and especially job openings posted on the internet, speaking with potential employers, attending interviews, and all other time spent related to your search for new employment.

At some point in the future, either to facilitate settlement discussions or in the event you file a lawsuit, you may be required to produce all records and documentation related to your job search efforts. Without this documentation, your attempt to recover damages from your...