Every injured or terminated employee has a legal duty to make reasonable efforts to mitigate or minimize his or her lost wage damages. But “failure to mitigate” is an affirmative defense, and the burden of proving any such failure falls entirely on the railroad. In Brough v. BNSY Railway, the Administrative Review Board held:
A wrongfully discharged employee seeking back pay has a duty to exercise reasonable diligence to mitigate his damages by searching for substantially equivalent work. However, the employer must prove that its employee failed to mitigate by submitting evidence that would establish that substantially equivalent positions were available and that the employee failed to attempt diligently to secure such position.
BNSF submitted no evidence of available comparable jobs for any of the times during which Brough was not working . . . BNSF instead relied solely on Brough’s admission that he did not look for a comparable job during these times. . . . Because BNSF failed to meet its burden of proof, we affirm the ALJ’s back pay award.
So a railroad cannot just rely on an employee’s admission that he or she did not apply for comparable jobs. The burden is on the railroad to prove there were comparable jobs reasonably available to the employee during the lost wage time period. Failure to present such proof is fatal to the railroad’s “failure to mitigate” affirmative defense.