The Duty To Accept Reinstatement In Employment Termination Cases

By harley erbe

Financial Stress

In a previous post regarding Des Moines wrongful termination law, Des Moines employment discrimination law, and Des Moines disability discrimination law, I discussed the responsibility to mitigate or reduce your lost wages after your employer has unlawfully fired you. There's another aspect of mitigation of damages regarding offers of reinstatement that must also be discussed. By "reinstatement," I'm referring to situations in which your employer fires you and then offers you your job back. Your employer's offer of reinstatement will become an issue if you pursue a wrongful termination or employment discrimination claim.

Your employer's offer to reinstate you can impact your ability to recover lost wages. The general rule is that, absent special circumstances, an employee’s rejection of an unconditional offer of job reinstatement stops the accumulation of lost wages from the point the offer is made. This is a corollary of the idea discussed in my earlier post that fired employees cannot just wait around, doing nothing and hoping that a lawsuit will make up for all of the wages that they're missing. So if you're considering suing your employer, and it offers you your job back, you need to think carefully about whether to reject that offer.   

Courts will usually review two factors in determining whether an offer of job reinstatement was improperly rejected, such that the employee's lost wage claim ends as of the date of the offer:

  1. Was the offer of reinstatement unconditional?
  2. Did any "special circumstances" exist that permitted the employee to reject the reinstatement offer without repercussion?

The first factor means that the reinstatement offer needs to be with no questions asked and no strings attached. The employer may not condition the reinstatement offer on the employee's dismissal of the legal claims or promise not to bring them. Nor can an employer require the employee to jump through any hoops as a condition of reinstatement. The employer needs to simply put the fired employee back where the employee was as if the termination had never happened. 

Likewise, the employee cannot demand anything in addition to reinstatement and then claim that the employer's failure to meet the additional demands is grounds for legitimate refusal of the reinstatement offer. For example, the employee cannot demand that the employer pay money or agree to other remedies that would only be available through a lawsuit and then turn down the reinstatement offer if those demands aren't met. The employee's additional demands cannot change the nature of an unconditional offer of reinstatement. Refusal to accept the reinstatement offer under such circumstances could later be criticized by a court.   

The second, "special circumstances" factor allows employees a way to reject even unconditional offers of reinstatement if they can establish that they had good reason for doing so. Some courts analyze the special circumstances factor in terms of reasonableness -- Why did the employee refuse the unconditional offer of reinstatement and was it reasonable for the employee to do so? Employees are cautioned to back up any such reasons with hard evidence, instead of just relying on their unsupported beliefs, opinions, fears, etc. Courts are less likely to find special circumstances justifying rejection of a reinstatement offer when the employee lacks independent evidence to support the asserted reasons for declining reinstatement.  

These rules should also apply to cases involving hiring or promotion decisions. The difference in those cases would that, instead of offering to reinstate the employee, the employer instead offers to hire the employee for the job or give the employee the promotion that the employee sought in the first place. Otherwise, the "unconditional offer" and "special circumstances" tests should still apply.

Please feel free to contact us if you need the assistance of a Des Moines employment lawyer.

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