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

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An employee who has suffered an economic loss due to an employer’s discriminatory conduct must make reasonable efforts to obtain alternative employment. (Fresno County Office of Education (1996) PERB Decision No. 1171, pp. 2-5 & adopting proposed decision at pp. 3-10 (Fresno).) The burden of establishing that a discriminatee failed in this duty rests on the employer who committed the wrongful act. (Id. at pp. 3-4 & adopting proposed decision at p. 4.) Any uncertainty is resolved against the employer. (Id. at p. 2, fn. 1 & adopting proposed decision at pp. 4, 7.) 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.” (Fresno County Office of Education (1996) PERB Decision No. 1171, p. 2, fn. 1 & adopting proposed decision at p. 4, internal quotation marks omitted.) Claimants are not expected to seek a job more onerous that the one from which they were removed but rather are expected to seek a substantially equivalent job. (Ibid.) The principle of mitigation of damages does not require success; it only requires an honest good-faith effort. (County of Riverside (2013) PERB Decision No. 2336-M, adopting proposed decision at p. 19 (Riverside).)