UNFAIR PRACTICE PROCEDURES; COMPLIANCE – Burden of Proof

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Within a reasonable period post-termination, terminated employees have a duty to mitigate losses by taking steps consistent with the inclination to find new work and be self-supporting. (County of Lassen (2018) PERB Decision No. 2612-M, pp. 8-9.) A respondent that violated the law has the burden of establishing that an employee did not make a good faith effort to mitigate damages. (Id. at p. 8.) First, the respondent must show that: “(1) a number of positions were available that are substantially equivalent to the one previously held by the claimant; (2) the claimant would have qualified for one of these positions; and (3) the claimant did not apply for these positions.” (Fresno County Office of Education (1996) PERB Decision No. 1171, adopting proposed decision at p. 4.) If the respondent establishes each of these elements, the employee may still satisfy the duty to mitigate by showing other reasonable efforts via testimony or other reliable evidence of good faith job hunting efforts. (Id., adopting proposed decision at pp. 4-5.) As with other issues causing uncertainty in the amount of damages owed, PERB resolves uncertainty about mitigation against the wrongdoer. (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 10; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 27.) Resolving whether an employee made reasonable efforts does not turn on any single category of potential job applications, much less any one application.