831.4 Events limiting back pay liability

Back pay issues discussed in this case include: standards and burdens for evaluating an argument that back pay would have increased because the Complainant would have been promoted in the normal course of her employment if it had continued; the effect of there having been parts of the back pay period in which the Complainant was physically unable to work, once because of an injury incurred in a job which the Complainant had taken in order to mitigate her losses and once because of an illness unconnected to work; and whether and when the back pay period should be considered terminated because of the Complainant’s acceptance of other employment. Hill v. Stanton Optical (LIRC, 09/26/14), dismissed by stipulation sub nom. Stanton Optical v. LIRC and (Hill) Martin (Dane Co. Cir. Ct. 08/17/15).

An Administrative Law Judge’s award of reinstatement and back pay up to the time of reinstatement was improper where the Complainant expressly stated at the hearing that she was only asking that she be awarded back pay up to the time of the hearing. Given the Complainant's waiver of reinstatement, the Complainant was only entitled to be awarded back pay up to the time of the hearing. Marquardt v. Wal-Mart Stores (LIRC, 06/14/93).

Where a Complainant was not actually discharged by an employer, the remedies of reinstatement and back pay can only be awarded if the Complainant establishes that the Complainant was constructively discharged. Marten Transport v. DILHR, 176 Wis. 2d 1012, 501 N.W.2d 391 (1993).

A decision by a Circuit Court that the Complainant was "not willing to work," so as to be unavailable for work within the meaning of the Unemployment Compensation Act, is equivalent to a determination that the Complainant failed to exercise reasonable diligence to obtain other employment. That finding precludes an award of back pay for the time that the Complainant was not willing to work. Frostman-Messier v. Nancy Lee Employment Agency (LIRC, 02/22/91).