831.42 Accepting comparable job at same or higher wage

Liability for back pay is not automatically cut off when the Complainant is re-employed at a higher wage. In this case, the Complainant accepted higher paying work after he had been discharged by the Respondent. However, the Complainant was not asked whether he would have accepted the job at the second employer even if he had still been employed by the Respondent. While the Complainant was not eligible for back pay during the time he worked for the second employer (where he earned more than he would have earned from the Respondent), his acceptance of that employment did not completely cut off his potential entitlement to back pay. Nor did it terminate his right to reinstatement with the Respondent. Robertson v. Family Dollar Stores (LIRC, 10/14/05

If a person obtains alternate employment with a higher wage in a position which he would have accepted even if he had been employed by the original employer, then the subsequent employment terminates the original employer’s liability for back pay and reinstatement despite the person's layoff from the subsequent employment. Anderson v. UW-Whitewater (LIRC, 12/03/80), aff’d sub nom. UW-Whitewater v. LIRC (Ct. App., Dist. IV, unpublished opinion, 11/25/85).