What Should the Proposed Restatement of Employment Law Say About Remedies?

Abstract

Employment termination in breach of contract is normally remedied by anticipated earnings from the lost job, mitigated by any amounts that the victim actually earned, or could with reasonable effort have earned, from alternative employment. Traditionally neither consequential nor punitive damages are available. The assumption is that most people who lose jobs unlawfully manage quickly to find alternative employment and suffer no long-lasting harm. Recent economic and epidemiological research explodes this assumption. Workers who lose jobs experience health problems (stroke, heart disease, depression, tobacco use), increased mortality, and continuing economic losses, long after the period of unemployment. Moreover, that period of unemployment after job loss lasts much longer than it used to. The Restatement should not freeze existing remedies, but should permit common law remedies to evolve to resemble statutory remedies under the Civil Rights Act of 1991, for example by expanding the covenant of good faith and fair dealing.