WHAT IS FRONT PAY?
Let’s say that you are representing a terminated employee and realize three things about his/her situation. First, the job the employee held before being fired no longer exists. Second, even if you get the employee reinstated, it is going to be a terrible situation because the same supervisors and managers who fired him/her are still there and clearly do not like the employee; nor does the employee want to work with them again. Third, one of your grievance claims is that the employee was fired in violation of the Civil Rights acts. If the only remedies you request are that the employee be reinstated and given back pay with interest, what other remedy option are you missing?
That’s right; the answer we wanted was “front pay.” But, what is that?
The EEOC and courts have held that there may be situations where the harmed employee cannot or should not be rehired and sent back into the same situation to work. In those situations they have the power under the Civil Rights acts to require a former employer to pay the employee his/her prior salary even if the employee does not return to work for them. In a 2011 case known as John V. Knott v. Donohue, US Postal Service, EEOC No.0720100049, the Commission found that it could not reinstate the employee given the continuing hostility among managers to the employee. After giving the employee back pay for the salary already lost, it addressed what to do about its inability to reinstate the employee and the future salary he would lose if he could not return. In this case it ordered the employer to continue to pay the employee from the day of the EEOC decision until he reached a reasonable retirement age or finds comparable work.
Although the Knott case only required the Postal Service to pay the employee for an additional two years, other cases have required much longer periods of future compensation. In a private sector case known as Padilla v. Metro North Commuter Railroad the federal courts required that an employee who had been demoted into a lower paying job with the same employer should continue to receive the higher salary of his prior job for the next 20 years without ever having to return to that more difficult work. The court thought ordering Padilla reinstated would only put him in a hostile situation. In other words, the court realized that one way or the other the employer would likely find a way to get rid of him.
In a 2013 federal employee case another court gave a 58 year old the employee four more years of compensation without having to return to work for the employer. Those additional years would have enabled him to retire at the average age of retirement for other employees of that agency. See Junaid v. McHugh.
The lesson here is that where the employee’s former job no longer exists or returning him to that job would put him in a hostile situation, the union is not limited to just getting back pay. So, be sure to include the phrase “any other appropriate remedy” among those you list in a grievance so that you can pursue front pay and other remedies you might not know a lot about at the time you file the grievance.