831.2 Computation of amount, generally

Back pay does not terminate when the decision becomes final, but when the Complainant resumes employment with the Respondent, or would resume such employment but for his refusal of a valid offer of reinstatement to a substantially equivalent position. Smith v. RWS Trucking (LIRC, 11/18/09).

The general rule is that liability for back pay will continue to accrue after a retaliatory discharge until the date that the Respondent makes a valid offer of reinstatement, or the date the Complainant ceases making a reasonable effort to mitigate her damages. Achilli v. Sienna Crest Assisted Living (LIRC, 07/18/08).

The accrual of back pay ceased when the Complainant stated at hearing that he was not seeking reinstatement. Metzger v. UGD Automotive (LIRC, 2/28/08).

The normal assumption is that the Complainant’s salary would remain the same had he not been discharged. The Complainant has the burden of establishing that his earnings would have increased had he remained employed by the Respondent. Kaczynski v. WSR Corp. (LIRC, 10/29/97).

The quarterly method of computing back pay entitlement is the most equitable way of dealing with the twin problems of accounting for offsetting earnings and determining interest owing on a liability which has accrued over a period of time. The quarterly method requires that each calendar quarter of the back pay period be looked at separately. For each such quarter there needs to be a determination of the dollar amount the Complainant would have earned from employment with the employer in that quarter but for the discrimination, and a determination of what the Complainant did earn from other employment (or received from unemployment compensation or welfare benefits) during that quarter. The difference between these amounts is the back pay due for that quarter. Interest is also due on that amount from the last day of that quarter until the day of payment. The total award in any given case is the sum of all such amounts for all calendar quarters in the back pay period. Holbrook v. Coffee Sys. Inc. (LIRC, 04/10/92).

Where a Complainant was earning at least $350 a week and was able to do so only by virtue of working overtime, the Respondent was not entitled to reduce its back pay liability by figuring an hourly wage for the Complainant and multiplying by forty. The Complainant's opportunity to work those overtime hours and to thus earn the amount he did was one of the advantages of the job which the Respondent's discriminatory actions deprived him of. In a quarterly back pay system, hourly wage is irrelevant; the question is how much the Complainant would have earned in a quarter. Holbrook v. Coffee Sys. Inc. (LIRC, 04/10/92).

In calculating back pay, the normal expectation would be that a Complainant's earnings would have stayed the same had he not been discharged. The Respondent has the burden of proof to show that the Complainant's earnings would have gone down and the Complainant has the burden of proof to show that his earnings would have gone up. Holbrook v. Coffee Sys. Inc. (LIRC, 04/10/92).

The Administrative Law Judge properly calculated the amount of back pay where he used the actual earning experiences of employees who held the Complainant's former position. The actual earning history of successor employees in the Complainant's former position included amounts earned by these employees when they were transferred to the first shift during times when the second shift was shut down. Given the Complainant's work experience and layoff history, it was reasonable to assume that the Complainant would have had the same opportunity to work on the first shift as her successors. Olson v. Phillips Plating (LIRC, 02/11/92).

Difficulty in calculating the precise amount of back pay should not defeat the right to a back pay award. In determining the amount of back pay, unrealistic exactitude is not required and uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the employer. Sahr v. Tastee Bakery (LIRC, 01/22/91).

In this case, back pay is ordered based on an average of the earnings of three comparably situated employees. Woolridge v. Chicago Northwestern Transp. Co. (LIRC, 08/22/86).

The Personnel Commission adopts the method of computing back pay and interest thereon on a calendar quarterly basis, that being the standard practice used by the National Labor Relations Board and a practice followed by the Equal Rights Division. Under this method, earnings in one quarter can offset only back pay due within the same calendar quarter, and may not reduce back pay for other quarters. Hollinger v. UW-MilwaukeeM (Wis. Pers. Comm’n, 07/11/86).

A statement in the remedial order that back pay should be computed on a “calendar quarter basis” means that earnings from other employment will only offset the back pay otherwise payable to the Complainant in the same calendar quarter during which the interim earnings were received. Sheriff v. Bishops Car Wash (LIRC, 02/04/86

While working for the employer by whom she was subsequently terminated and against whom she subsequently prevailed in the discrimination claim, the Complainant was also drawing unemployment compensation benefits based on previous employment with a prior employer. In determining the amount of back pay due the Complainant, the Commission elected to look not at the evidence the Complainant gave at the hearing as to what she earned working for the employer, but rather as to the declarations she made to the Unemployment Compensation Division, during the period of her employment, concerning the wages she was earning. Schaeffer v. Alexander’s Rest. & Lounge (LIRC, 11/13/85).

An employee was laid off temporarily, recalled, and then laid off permanently. The first layoff was found discriminatory. Noting that the unemployment benefits the employee received during the second layoff were less than they would have been had he not been laid off the first time (because he had fewer benefit credit weeks), the Commission approved an order that, to remedy the first, discriminatory layoff, the employer pay the employee the difference. Heisel v. Manufacturers Box Co. (LIRC, 10/04/84); also, Vicherman v. Neuendorf Transp. (LIRC, 06/08/81), aff’d sub nom. Neuendorf Transp. v. LIRC (Dane Co. Cir. Ct., 05/07/82).

Lost overtime wages are a proper component of a back pay award. Toonen v. Brown County (LIRC, 10/15/82), aff’d sub nom. Brown County v. LIRC (Brown Co. Cir. Ct., 11/14/83).

Back pay may be calculated by averaging the earnings of the employer’s other workers performing the same job. Poeschl v. Mercury Marine (LIRC, 04/01/81).

Back pay may not be denied simply because it cannot be exactly calculated or is difficult to calculate. Buyatt v. C.W. Transport (LIRC, 07/25/77).