Vocational Experts Are Not Economists – Documenting the Loss of Earnings in Employment Law Cases

January 18th, 2018

Vocational Experts can add valuable services to assist the Plaintiff or Defense attorney in determining the impact of termination on a Plaintiff’s ability to return to work in their previous occupation, use their skills to perform related occupations, and/or earn money equivalent to their pre-termination earnings.  In addition, the expert will consider the reasonableness of the Plaintiff’s job search to mitigate their damages.

Employability Experts can provide evaluations in employment law cases involving such situations as:

* Wrongful Termination

* Discrimination – Age, Gender, Religion, Disability, Country of Origin

* Sexual Discrimination

* Sexual Harassment

* Whistleblowers

* Americans with Disability Act – Protection of Disabled employees

The Employability Experts objectively document the effect of the termination on the evaluee’s ability to be employed and earn money.  The expert answers such questions as:  Has plaintiff employee sustained any change in earning capacity or employability due to the alleged action of the defendant employer?   What are the vocational damages?

It is important for the attorney to understand that Vocational Experts play no role in determining the liability portion of this type of case, assessing only the case damages.

In determining the damages, the Vocational Expert assesses the plaintiff’s employability, transferable skills, and resultant earning capacity.  Lastly, the expert will assess if the employee conducted a reasonable job search to mitigate their damages.

The employability assessment consists of a diagnostic vocational interview of the Plaintiff to determine their age, education, past work experience, previously learned skills, and medical limitations, if any.  In addition, the expert may administer a battery of vocational tests to assess the individual’s achievement levels, skills, and aptitudes.  A transferability of skills evaluation is performed by the Vocational Expert to determine what types of occupation the Plaintiff can perform if they cannot return to their pre-termination employment.  Based on this data, the Vocational Expert will determine what jobs, if any, the terminated Plaintiff can perform and what these jobs pay in the local labor market.

OAS Vocational Experts will perform a local labor market survey to document the availability of jobs the Plaintiff can perform in the local labor market and the wages for these jobs.  The salaries for the open jobs are compared to the average earnings for the same jobs in the Plaintiff’s geographical area as reported by federal and state Department of Labor wage surveys.

The Employability Expert will also review the Plaintiff’s job search to determine if the job search conducted was reasonable.  In order to perform this analysis, the expert will review the individual’s resume and job search records.

A case example was a middle-aged woman who was allegedly terminated from her occupation as a Fast Food Restaurant Manager due to racial discrimination.  An in-person evaluation was conducted and it was determined that the woman had applied and was offered many jobs but rejected them as she did not want to work on Saturdays.  However, at the time of her interview, she was working as a Cafeteria Manager at a salary equal to her pre-termination job.   Therefore, there was no future loss of earnings.

A Vocational Expert can be of great help in employment law cases in assisting in documenting the case damages.  Vocational Experts can testify on matters such as if the plaintiff performed a reasonable job search after their termination and what their post-termination earning capacity is.

In fact, the Supreme Court in New Jersey found in the Quinlan Case that in order to prove future lost earnings, the Plaintiff attorney must hire a Vocational Expert, as well as an Economist.  The take-away is, Economists are NOT Vocational Experts.

Occupational Assessment Services, Inc. (OAS) is one of the leading companies providing Vocational Expert services in Employment Law cases in the United States.  We have extensive experience in working for both the Plaintiff and Defense in Employment law cases.

Consult www.oasinc.org or contact OAS at 800-292-1919 to obtain a fee schedule, professional qualification, and sample employment law report, as well as to discuss how OAS can help with your case.  Occupational Assessment Services, Inc., with offices in NJ, NY, FL, TX, CT, GA, NV, and CA, is one of the foremost companies providing Vocational Experts services in the United States for Plaintiff and Defense Employment Law Attorneys.