Vocational Capacity Evaluations and Employment Law

A vocational capacity evaluation has an important role in determining whether an employee has sustained any change in vocational and earning capacity due to the actions of an employer. There are numerous areas of employment law where violations can result in vocational loss and damages for an employee. These can include terminating, passing over, or failing to hire an employee based on protected characteristics (i.e., race, gender, age, country of origin, religion, and disability), failing to provide reasonable accommodations to qualified employees, retaliating against employees who file grievances, as well as defamation, breaches of contract, and inflicting emotional suffering. The vocational expert is requested to provide opinion on whether such actions have a vocational effect on the employee that impact career path and earnings.

Common statutes in employment law litigation involving the need for vocational opinion:

  • Title VII of the Civil Rights Act, overseen by the Equal Employment Opportunity Commission (EEOC)

  • Age Discrimination in Employment Act (ADEA)

  • Americans with Disabilities Act (ADA)

  • Family and Medical Leave Act (FMLA)

  • Uniformed Services Employment and Reemployment Rights Act (USERRA)

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Employability and Earning Capacity prior to Termination or Statute Violation

Establishing whether an action by employer has had adverse vocational impact on an employee, the vocational expert will profile the claimant's employment held at the time of the event. This will involve examining job duties, grade or level of position, earnings and benefits, tenure with company, history of promotion, opportunity for future advancement, employability outside of the company, maximized earning capacity, and worklife expectancy.

Employability and Earning Capacity following Termination or Employment Statute Violation

In the next step, the vocational expert examines the outcome of the adverse event, which may have resulted in unemployment, lack of promotion, longer than expected job search, underemployment or a bridge job, lesser earnings, loss of future opportunities for advancement, loss of reputation and seniority. If the claimant has been terminated, a vocational opinion is given in regard to employability of the claimant within the labor market at the time of termination and the expected duration of a job search.

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Determining Vocational Damages following Wrongful Termination

In this step, the Vocational Expert will take the employability and vocational capacity experienced by the claimant prior to the termination and compare it to employability and estimated vocational capacity of the claimant following the termination. This will also involve considerations of the diligence and scope of the claimant's job search and the expected amount of time it should take for the claimant to have found work following the termination.