Vocational evaluations are usually conducted at the request of lawyers. Vocational evaluations are a common tool that lawyers use to gain evidence in cases that turn, at least in part, on employability.
Lawyers may want to have their own client evaluated to create evidence in support of the client’s claim. Lawyers may also want an expert to evaluate an opposing party to create evidence that will help the lawyer challenge the party’s claim.
What Is a Vocational Evaluation?
Vocational experts assess employability by conducting vocational evaluations. In simple terms, a vocational evaluation examines a client’s ability to earn income by working. Vocational evaluations may answer the broad question of whether an individual is capable of doing any wage-earning job at all. They may also answer narrower questions about the kinds of work an individual is capable of performing and the income that the individual might earn by working in those occupations.
Vocational experts typically have a master’s degree and relevant training that leads to a state or national certification. They are trained to use reliable techniques and sources of data to determine the kinds of work, if any, that an individual can perform.
When your lawyer wants you participate in a vocational evaluation, your cooperation is essential. When an opposing lawyer hires an expert to conduct a vocational evaluation, your lawyer can guide you regarding the extent of your participation.
A vocational evaluation conducted for your lawyer will follow several steps:
1. Document review. The vocational expert will gather (or ask your lawyer to gather) records that are relevant to your employability. That review may include school transcripts, job training records, personnel files maintained by former employers, tax returns, military records, resumes, and other documents that pertain to work history or suitability for employment. When an injury or disability may affect employability, the vocational expert will also want to review medical records, including functional capacity evaluations, to determine how the injury or disability affects the ability to work.
2. Client interview. The vocational expert will want to review documents with the client to make sure that the information in those records is accurate and complete. The vocational expert will ask the client about past employment, whether the jobs were satisfying or unpleasant, the reasons for employment terminations, the kind of work the client would like to do, whether the client would need additional education or training to perform that work, physical limitations that have an impact on working, and details of any job search the client has conducted.
3. Collateral interviews. The vocational expert may want to talk to family members, friends, healthcare providers, former employers, and other people who have information that relevant to the client’s employability.
4. Vocational testing. The vocational expert chooses from one or more standardized vocational tests to assess the client’s aptitudes and abilities. Some tests offer insight into the client’s personality and suitability for different kinds of work. For example, some people work better in a group and others are more suited to working independently.
5. Transferable skills assessment. Based on the document review, interviews, and vocational testing, the vocational expert will identify the client’s work skills. The expert will then determine whether there are occupations that the client has not yet performed that a person with those skills might pursue successfully, taking into account any limitations imposed by an injury or disability.
6. Job market survey. Using databases and personal research, the expert will survey the local labor market to determine whether jobs are available that the client has the ability and qualifications to perform.
7. Review preliminary findings. The vocational expert will use all the collected data to reach preliminary conclusions about employability. The expert may want to review those conclusions with the client to make sure that they are accurate.
8. Report preparation. Finally, the vocational expert will prepare a report for the client’s lawyer. That report will articulate the expert’s conclusions about the client’s employability. The expert will state opinions regarding the likelihood that the client can work in previous occupations and will identify other jobs that the client will probably be able to perform. When appropriate, the expert will also identify a range of wages that might be earned in jobs that the client is capable of performing.
When opposing counsel hires a vocational expert, the process may be modified. If the expert is not given the opportunity to interview the client, the expert may need to rely on deposition testimony or documents alone to gather information about the client’s background. Depending on the nature of the case, the expert may or may not be able to conduct vocational testing. Relying on the best available data, the expert will perform a job market analysis and will arrive at conclusions about the client’s employability.
Why Am I Being Asked to Participate in a Vocational Evaluation?
Employability can be an issue in a variety of legal disputes. Lawyers ask clients to participate in vocational evaluations when they believe an expert analysis will help them gain evidence that they can use in court or before an administrative agency.
In cases involving disability benefits, whether paid by government programs or insurance companies, the reduced ability to work (or a total inability, in some cases) may be a condition of receiving benefits. A vocational analysis can provide evidence in support of insurance claims, workers’ compensation claims, and claims for government disability benefits.
In personal injury cases, damages for the loss of earning capacity may hinge on proof that an injury diminishes the opportunity to earn future income. A vocational evaluation can support or refute claims for lost earning capacity.
In cases involving a wrongful termination of employment, the ability to obtain comparable employment in the future is important to a determination of damages. Mitigation of damages defenses may also hinge on a vocational evaluation.
The award of alimony, maintenance, or child support in a family law case is based in large part on the earnings of both spouses. If a spouse is capable of earning a higher income and is choosing to forego more lucrative employment to avoid higher alimony payments, proof of the spouse’s employability in a different occupation may persuade the court to base alimony on wages the spouse could be earning rather than actual earnings.