Estimating Damages in Wrongful Termination Cases
The typical scenario in estimating lost earning capacity in liability cases usually involves a claim for acquired physical or cognitive restrictions that prevent a plaintiff from working in their chosen field attributable to the negligence of another. In cases involving wrongful termination, it would seem that the standard method for comparing pre-incident earning capacity with post-incident earning capacity would be essentially the same. As vocational rehabilitation experts, we consider two familiar issues: the “but for” scenario and the “offset” scenario. We must first establish what the plaintiff’s expected earnings, career path, and benefits would have been had the alleged wrongful termination not occurred. Next, it is important to offset or account for any potential diminution of earnings capacity given that the alleged wrongful termination did occur.
Whereas the same general methodology for addressing potential lost earnings is similar for wrongful termination, there are several important differences that can complicate the analysis. Regarding employability, for example, although circumstances vary among cases, the terminated worker typically does not have the benefit of a positive recommendation from their former employer, which can impact their post-termination job search. If the plaintiff had been a long-term employee of the previous employer, it can be awkward to explain to a potential new employer the circumstances surrounding their departure from the previous employer. This potential hindrance to alternate employment would be difficult to quantify. At times, the best available metric is the collection of job interviews the plaintiff has completed that have not resulted in an offer of employment.
Another challenge in estimating damages is assessing post-termination earning capacity because of the variability of occupations in which wrongful termination is alleged. The U.S. Bureau of Labor Statistics and state departments of labor collect regular wage data via the Occupational Employment Survey. However, what if insufficient data exist to adequately address specific occupations? And, what if the plaintiff’s occupation is too specific for the survey? This problem is often seen for sub-specialties of traditionally white-collar jobs. For example, it may be relatively straightforward to determine what the median earnings of an attorney are, but what about attorneys who specialize in bankruptcy, or civil rights litigation, or divorce? The variability within the occupation of attorney could in some cases be substantial. In these instances, it is often helpful to turn to professional or trade organizations who may routinely survey their members for earnings data. To get a sufficient sample size, it is likely that published survey results from national, as opposed to state-wide organizations, will be preferred.
Ultimately, the trier(s) of fact will have to determine if an employee was wrongfully terminated and what damages have been experienced, and vocational rehabilitation experts must provide information that has been collected under generally-accepted methodologies that accurately addresses monetary damages.
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To strategize with one of our vocational experts or medical cost projections experts at Stokes & Associates please call David Barrett at 504-454-5009, visit our website, www.stokes-associates.com or email dbarrett@stokes-associates.com.
Larry S. Stokes, Ph.D.
Aaron Wolfson, Ph.D.
Lacy Sapp, MHS, CRC, LPC, LRC, CLCP
Todd Capielano, M.Ed., LRC, CRC, LPC, CLCP
