Deposition preparation in a wrongful termination matter covers the compensation the employee lost, the benefit accruals that stopped, the front pay period, and the replacement earnings. Opposing counsel will press on the expected tenure behind the front pay period, on whether pension and retiree health losses were valued from the plan terms rather than estimated, and on the job search. The economist should be able to show each component separately, explain the tenure and job market evidence behind the front pay period, and present the result under the alternatives the opposing side is likely to propose.
Checklist
Confirm the pension and retiree health losses are valued from the plan documents
Review the front pay period against the employee's age, occupation, tenure, and job market evidence
Verify the replacement earnings against the job search record
Confirm the but-for raises and bonuses are supported by the employer's practices
Assemble the reliance file and the opposing report
Questions to ask the economist
How did you value the pension loss, and what plan terms did you rely on?
What evidence supports the front pay period, and what is the result under a shorter one?
How did you treat replacement work with lower pay or fewer benefits?
How did you handle the period before the employee found work?
Timeline
One to two preparation sessions in the two weeks before the deposition, after the report and the plan records are final.
Required documents
The final report with each component shown separately
Pension, retiree health, and equity plan documents
Employer pay records and the job search and replacement employment records
The opposing economist's report
Common pitfalls
Estimating pension losses without the plan's benefit formula and vesting terms
Asserting a long front pay period for an employee whose occupation has a ready job market
Leaving the replacement job's benefits out of the comparison
Why is the front pay period the most contested assumption in a termination case?
Because it sets how long the loss continues and there is no record of the future to check it against. The economist supports the period with the employee's age, occupation, tenure, and the time comparable work reasonably takes to find, and shows the total under alternative periods so the fact finder can see what the assumption moves.
How does the economist answer a question about whether the employee could have been laid off anyway?
By explaining that the but-for path assumes continued employment for the period counsel identified and that the report shows the loss under shorter periods as alternatives. Whether a later layoff or plant closing would have ended the employment is a factual question for the fact finder, and the economist's tables let it apply whichever finding it makes.
When is the economist's deposition typically taken in a termination case?
After the employer's compensation and plan records have been produced and the employee has been deposed on the job search, so the mitigation record and the plan terms are settled. Taking it earlier invites a supplemental report when the plan documents arrive, which reopens the examination. Counsel should also confirm the back pay figure is current as of the deposition.
References
U.S. Bureau of Labor Statistics. (n.d.). Current Population Survey (CPS). U.S. Department of Labor. bls.gov
U.S. Bureau of Labor Statistics. (n.d.). Employer Costs for Employee Compensation (ECEC). U.S. Department of Labor. bls.gov
U.S. Department of the Treasury. (n.d.). Daily Treasury par yield curve rates. home.treasury.gov