During recent years I have been asked to prepare career employment and compensation reports by attorneys acting on behalf of both plaintiffs and defendants. Whilst carrying out these assignments, I have noticed in numerous cases that it has been a common feature for the plaintiff’s actual employment history and educational details to be incomplete.
Whilst carrying out these assignments, I have noticed in numerous cases that it has been a common feature for the plaintiff’s actual employment history and educational details to be incomplete. A recent example occurred when an employee had not produced evidence about their degree. After insisting on seeing the actual certificate to verify the details, it subsequently transpired that the degree was of a different class and subject to that which was previously claimed. This type of situation can of course lead to a significant misinterpretation of a plaintiff’s skills, their future career prospects and earnings potential.
Having spent over thirty years in Human Resources, it is apparent to me that often the “employment records” are pulled together by the plaintiff themselves, therefore trying to avoid the need to go to their former employer(s) for the complete and accurate picture. This can of course sometimes be complicated by individuals whose career path has included working abroad, career breaks and having worked for companies no longer in business.
It has been my experience that most employers (or former employers) do not readily respond to reasonable requests for employee records, whether paper based or retained within computer databases. Frequently I discover a general reluctance to assist with the litigation process because companies do not consider such requests to be a key business priority. They are also reticent to become involved in any legal matter which does not involve the business itself.
However, once an employer has been educated as to why they are being asked to produce historical records (with their employee’s permission), the level of assistance generally increases. Co-operation from employers can noticeably improve when they discover they may be able to recover some of their costs, such as sickness payments and private health plan medical expenses.
Having secured the most comprehensive set of documents relating to an individual’s employment, it is then vital to review them thoroughly to ensure they are 100 per cent complete and consecutive, thereby eliminating the possibility of only reviewing a selective sample. Obtaining records directly from an employer is therefore the most reliable source to ensure that all documents are produced.
Interpreting the employment records themselves is obviously a key part of the required analysis. Evaluating employee trends give vital clues as to the long term career potential (or otherwise) for an individual.
An example where this level of analysis had a significant bearing on the financial outcome of litigation was when I identified a senior employee who had been recommended for further promotion on a number of occasions. However, the promotions were not approved by the firm’s nominations committee. Although this may not have been viewed as a serious issue, using my industry knowledge it was apparent to me that this career path had reached a plateau and that further upward progression would have been impossible. This naturally led to the plaintiff having lower prospective earnings than predicted.
In conclusion, it is my experience that tracking down any missing employee information is a very worthwhile exercise, as this can produce significant differences when assessing the loss of earnings.
Stuart J Baxter is an Executive Director of GMR Consulting. He has had over 35 years experience in Human Resources, based predominantly in the Financial Services sector. He specializes in all areas of executive compensation and benefits and provides consultancy services to corporations across all industries. He is frequently engaged as an Employment Expert for litigation by attorneys acting on behalf of both plaintiffs and defendants.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.