In wrongful termination litigation, the parties must assess the plaintiff's claims of economic loss. Additionally, the parties must assess whether the plaintiff has made a good-faith effort to seek comparable employment to mitigate damages. Hiring a vocational expert is an effective way to accomplish both tasks. Aside from providing proof at trial, a vocational expert can help value the case, evaluate the job market, and get a terminated employee back to work as soon as possible. This solves a real-life problem for the plaintiff while limiting economic exposure for the defendant.
Resources to Consult
To assess the loss and likelihood of re-employment during the pretrial phase, a vocational expert can refer to the Displaced Worker Summary, published by the U.S. Bureau of Labor Statistics (available at www.bls.gov). This national survey reports out the length of time individuals are unemployed after being terminated, and the data can be parsed by industry, occupation, and region, based on gender, level of educational attainment, and race. Multiplying the number of weeks of unemployment by the plaintiff's weekly salary results in a reasonable estimate of the individual's loss, suitable for settlement negotiations.
If a settlement does not result, a vocational expert can opine on the plaintiff's post-termination earning capacity in the local labor market. Although sometimes an individual can be expected to earn the same amount he or she was earning historically, other times plaintiffs find they need to take a pay cut to secure a new position, and it may take years for the individual to catch up to the previous earnings trajectory.
For the purpose of helping a plaintiff with a job search, it makes good sense to hire a vocational expert promptly after the termination. Doing so helps to demonstrate the plaintiff's good-faith effort to seek comparable employment. Even if the recommended steps prove unsuccessful, the expert can testify as to how the effort was undertaken in good faith and why it was reasonable.
But if the plaintiff either does not retain a vocational expert - or worse, refuses to follow a retained expert's advice - it is a safe bet that the defense will engage an expert of its own to testify that the plaintiff should have made greater efforts to seek employment. In such a case, the defense will likely document the existence of any comparable employment opportunities the plaintiff should have pursued.
Problems to Overcome
Even if the plaintiff has a checkered employment record, a vocational expert can help examine what went wrong in the past and arrange for the client to get the benefit of some skills, role playing, and skill-building exercises. The expert may also help the plaintiff develop interview confidence, marketing tools, and job search strategies. Through such an endeavor, the plaintiff may find a more persuasive way to articulate his or her story to make the best possible impression on potential new employers, not to mention a jury.
If comparable jobs are not available, the burden of proof will be on the plaintiff to prove the reasonableness of the job search. And if the plaintiff must transition to a new occupation, the services of a vocational expert can be of value. For these reasons, plaintiffs should hire an expert at the beginning of the case (and even earlier if the job search process has already begun). But if the plaintiff's counsel postpones hiring an expert until the eve of the trial, it may be too late to demonstrate that the plaintiff has made a good-faith effort to seek employment.
Defendant employers aren't under the same time pressures to bring a vocational expert on board, but once the basic facts become evident, it makes sense to line up an expert. Do it before the onset of settlement negotiations, because the side that is best equipped to analyze the extent of the damages likely will have the best chance of procuring a favorable resolution of the claim.
Phillip D. Sidlow is a vocational economic analyst affiliated with Vocational Economics in Los Angeles.