Wrongfully termination? Do the math before deciding not to take employee back

When an employer is found to have discriminated against a worker who was terminated, two big questions arise: whether the remedy will be reinstatement or payment of so-called front pay—the amount the employee would have earned had he not been fired.

If it is clear the worker won’t be rehired, the court will try to determine how much the wrongful termination cost the worker in lost income. That figure depends on a long list of individualized factors, including the length of prior employment, the permanency of the old position, the nature of the work, the age and physical condition of the worker and other unique-to-the-case factors.

Recent case: Robert had a criminal record, which made it difficult to get regular work that paid well. He was delighted when Sanderson Farms, a poultry processing plant, hired him as a custodian at a decent wage with benefits.

He was so happy, in fact, that he stayed on the job for 30 months, even though most Sanderson Farms workers quit within their first year. But then he was terminated.

Robert sued, claiming he had been injured on the job and that the company fired him after refusing to make reasonable accommodations.

A jury concluded that Robert had been discriminated against and the judge set about trying to calculate the damages. The company said it would not reinstate him to his custodian job—which paid $31,000 per year, with benefits—or any position.

That opened the door for a front-pay award. Applying the factors, the judge looked at Robert’s criminal record (a bar to many jobs) and his efforts to find work. Despite submitting more than 90 applications, he ended up as a pizza delivery driver, making less than $8,000 per year.

The court concluded that Robert should receive five years’ worth of lost wages, calculated by subtracting his current earnings from those he likely would have earned at Sanderson Farms. The court cited his criminal record, his disabilities, his unsuccessful efforts to get another well-paying job and his clear preference to have kept what others might not consider a good job because of his unique circumstances.

Robert was awarded $110,900. (Willich v. Sanderson Farms, WD TX 2018)

Advice: Consider several factors before deciding it isn’t feasible to rehire a worker who may have been wrongfully discharged. For example, weigh whether you have a current opening or would have to create a position for the worker.

Also factor in the possibility that if you rehire him, the worker might decide to sue you again, perhaps alleging poor treatment on return and claiming it was discrimination.

If the worker is disabled, consider the types of accommodations you may have to make. This factor often comes up if the worker’s condition has deteriorated since you discharged him.

Then try to determine what his front pay might look like. If he’s working at a job with a salary at or close to the one you paid him, then the potential liability is less than if he can’t find a job or is working for low wages without benefits. Be especially mindful of unique barriers to working, such as a criminal record or advancing age.