Employment damages analysis applied to employment discrimination litigation: methodology, deliverables, and case-specific considerations.
In an employment discrimination matter the analysis measures the gap between the compensation the employee would have received absent the adverse action and the compensation actually received, from the date of the action through a reasonable point in the future. The economist reconstructs the but-for path from the employer's payroll records and pay practices, including raises, bonuses, and benefit accruals, nets actual interim earnings year by year, evaluates mitigation, bounds the front pay period, and discounts future amounts to present value. In failure-to-promote and pay-disparity claims the analysis compares the employee's compensation with the position or comparators counsel identifies.
Back pay, front pay, and lost benefits in discrimination, retaliation, wrongful termination, and wage-and-hour matters. The analysis reconstructs what the employee would have earned in the position, including raises, bonuses, and benefit accruals, measures actual interim earnings, and evaluates mitigation and the period over which front pay is reasonable. In wage-and-hour matters the same records drive an hours and pay reconstruction for the individual claim or the class.
The claim consists of back pay from the date of the adverse action to the date of trial or analysis, including base pay, overtime, bonuses, commissions, and raises the employee would have received; lost fringe benefits such as retirement contributions, health insurance, stock awards, and paid leave; front pay from the date of analysis until the employee reaches or would reasonably reach comparable employment; and, in failure-to-promote and pay-disparity claims, the difference between the compensation actually received and the compensation of the position or pay level denied. The drivers are the employer's payroll and personnel records, comparator compensation data, the employee's post-termination earnings, and evidence of the job search.
We issue the final report and provide deposition and trial testimony, rebuttal of opposing damages opinions, and updated calculations as the trial date moves.
Counsel identifies the comparators; the economist compares the employee's compensation with theirs over the relevant period, documents the differences by pay element, and computes the shortfall with interest where applicable. The report states the effect of using each comparator set.
The report states a reasonable job-search duration and a replacement wage level drawn from local occupational data and unemployment duration data, and presents the loss with and without the offset so counsel can address whether the search was reasonable.
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