831.3 Offsets from back pay

The payment the Complainant received from a business he owned did not constitute “interim earnings” within the meaning of the statute. Therefore, those earnings were not deducted from the back pay award. The amount the Complainant earned was a fixed sum that he had drawn from his outside business throughout the course of his employment with the Respondent, and this income had continued following his discharge. Smith v. Wis. Bell (LIRC, 04/19/12).

Back pay was not cut off as of the date the Complainant, who had been terminated by the Respondent, received a raise at a subsequent job with another employer (in May of 1987) since the Complainant’s earnings per calendar quarter were still less than they would have been had he continued at the Respondent. The question is not hourly rate, but earnings. However, back pay liability was terminated at the end of calendar year 1988 because the Complainant’s quarterly earnings after that time were consistently higher than what he would have earned had he continued working for the Respondent and the new job was comparable in terms of career path considerations. Holbrook v. Coffee Sys. Inc. (LIRC, 04/10/92).

A uniform charge which a subsequent employer deducted from the Complainant’s wages served to reduce the amount of interim earnings which offset back pay. The uniform charge was subtracted from the interim earnings on a quarterly basis and not as a lump sum. Holbrook v. Coffee Sys. Inc. (LIRC, 04/10/92).

The back pay award was reduced where the Respondent sustained its burden of proving that from the time the Complainant was discharged until the time her baby was born she did not actively seek employment and, thus, failed to reasonably mitigate her wage loss. Davis v. Braun-Hobar Corp. (LIRC, 04/18/90).

In a case brought under the Employees’ Right to Know Law, secs. 101.58-101.599, Stats., the Department exceeded its authority when it ordered that the Complainant recoup all back pay without deducting the unemployment benefits he had received. The effect of this order was to overcompensate the Complainant. Door County Highway Dep’t v. DILHR, 137 Wis. 2d 280, 404 N.W.2d 548 (Ct. App. 1987).

An employer may deduct from back pay amounts it can show would not have been earned because of the Complainant's predictable history of absenteeism. Szczerbiak v. Forest Labs (LIRC, 07/06/83).

LIRC does not have authority to reduce a back pay award by the amount of sick leave benefits received, especially where the employer did not pay those benefits. Roessler v. LIRC (Chicago & N.W. R.R.) (Eau Claire Co. Cir. Ct., 09/08/82).

LIRC did not abuse its discretion in refusing to reduce the applicant’s interim earnings to reflect a 40 hour work week where the applicant worked 50 hours per week. While some federal cases argue that earnings are “supplemental” where the employee could have earned them and still worked at the position which he was discriminatorily denied, LIRC could reasonably conclude that the Act requires it to deduct all actual earnings from lost wages. Neuendorf Transp. v. LIRC (Vicherman) (Dane Co. Cir. Ct., 05/07/82).