WVC 55 - 7 E- 3
§55-7E-3. Statutory or common law employment claims; duty to mitigate damages.
(a) In any employment law cause of action against a current or former employer, regardless
of whether the cause of action arises from a statutory right created by the Legislature or a cause of
action arising under the common law of West Virginia, the plaintiff has an affirmative duty to
mitigate past and future lost wages, regardless of whether the plaintiff can prove the defendant
employer acted with malice or malicious intent, or in willful disregard of the plaintiff's rights. The
malice exception to the duty to mitigate damages is abolished. Unmitigated or flat back pay and
front pay awards are not an available remedy. Any award of back pay or front pay by a commission,
court or jury shall be reduced by the amount of interim earnings or the amount earnable with
reasonable diligence by the plaintiff. It is the defendant's burden to prove the lack of reasonable
(b) In any employment law claim or cause of action, the trial court shall make a preliminary
ruling on the appropriateness of the remedy of reinstatement versus front pay if such remedies are
sought by the plaintiff. If front pay is determined to be the appropriate remedy, the amount of front
pay, if any, to be awarded shall be an issue for the trial judge to decide.
Note: WV Code updated with legislation passed through the 2015 Regular Session
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