Front pay compensates the employee for the future effects of discrimination when reinstatement would be an appropriate, but not feasible, remedy or for the estimated length of the interim period before the plaintiff could return to her former position. Pollard v. E.I. du Pont de Nemours & Co., 532 U.S. 843, 850 (2001). Although reinstatement is preferred under the law, front pay may be awarded instead of reinstatement when (1) no position is available; (2) a working relationship between the parties would be antagonistic; or (3) the employer has a record of long-term resistance to anti-discrimination efforts. In other words if there is likely to be retaliation then the Judge will ordinarily not order reinstatement. It should be noted that because reinstatement is an equitable relief it is the Judge and not the jury which makes this decision.
In deciding how much front-pay to award, the Court should consider: (1) the age of the employee; (2) the reasonable amount of time for the employee to obtain a another similar position; (3) the amount of time the employee worked for the employer and (4) the amount of time the employees in the similar positions had worked for the employer (turnover rate). Barbour v. Merrill, 48 F.3d 1270, 1280 (D.C. Cir. 1995); EEOC v. HBE Corp., 135 F.3d 543, 555 (8th Cir. 1998) (reducing five-year front pay to one year based on high turnover of predecessors). If the employer offers an unconditional offer for the employee to return to work then this can cut off any future lost wage claim. It is my experience that employers rarely offer an unconditional release to return to work because they face the risk of an additional retaliation claim by the employee if he or she feels the employer is treating them badly. To obtain front pay the employee must show that they are trying to obtain employment. In El Paso, Texas and Las Cruces, New Mexico employees are required to keep a job search log to obtain unemployment benefits. These logs are good evidence of job searches. However employees seeking compensation for wrongful termination for any reason should be aware that many diligent employer lawyers will investigate each and every job search to make sure the employee did actually seek employment. Also there are many online job search web sites and these can also be excellent ways to prove a diligent search for work.