REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS – Back Pay; Interest

Single Topic for Decision A475E

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A finding by the Board that an unfair labor practice was committed is presumptive proof that at least some backpay is owed. The burden of establishing that employees failed to mitigate their economic losses rests squarely on the employer that committed the wrongful acts giving rise to those losses. “To establish a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts consistent with the inclination to work and to be self-supporting. Claimants are not expected to seek a job more onerous that [sic] the one from which they were removed but rather are expected to seek a substantially equivalent job.” [Citation.] A “wrongfully-discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the [employee] be successful in mitigating the damage.” [Citation.] It is well established that “any uncertainty [as to backpay] must be resolved against the wrongdoer whose conduct made certainty impossible.” [Citation.] (p. 10.)