Adjustments for gaps in work history or temporary unemployment when a limiting event takes place are similar to those made by the damages expert if there is no work history. For example, farm workers, self-employed individuals and temporary military personnel, all have unique circumstances associated with defining and measuring base earnings.
Farm work can be difficult and hazardous and lead to injuries and yet many farm workers such as migrant workers may be employed by many different farms and locations during a season. Some are paid hourly and others paid on productivity, and each needs be adjusted for seasonality. Fortunately, the damages expert has available information from the US Department of Agriculture and Department of Labor in terms of special reports on the US Agricultural Work Force that show annual earnings by race, sex, age, education and days worked.
According to the Bureau of Labor Statistics, in 2015 there were 15 million self- employed workers representing 10.1 percent of the workforce. Measuring self-employed worker damages depends on the quality of the accounting information kept by the individual. Sometimes the expert will need to probe to determine what the person does or makes and check appropriate industry data. The income reported on IRS Form Schedule C may help determine net income. However, these types of cases call for special efforts and research to determine the net loss, adjust for factors such as special bonuses paid to the business owner, and determining if the loss is permanent or temporary, total or partial.
Military pay during a temporary period, such as a tour of duty in the National Guard working full time, would not normally be considered as typical of baseline earnings due to the compensation gap between military and civilian pay. Therefore, the damages expert needs to consider civilian pay prior to deployment when projecting the baseline earnings.
In summary, there is no simple set of guidelines to use in defining and measuring baseline earnings. In Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103S. Ct. 2541. 1983), the Supreme Court noted “The most obvious and most appropriate place to begin is with the worker’s annual wage at the time of the injury. Yet the estimate of the loss need not be based solely upon the wages which the plaintiff was earning at the time of the injury.”
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