Non-compete and restrictive covenants
Earnings and profit effects of covenants not to compete, including class-wide disputes.
Employment
Back pay, front pay, lost benefits, and the earnings effects of non-compete and restrictive-covenant disputes.
Employment disputes turn on earnings a worker would have received, or profits a business would have earned, absent the conduct at issue.
The categories available in an employment matter depend on the claim, the jurisdiction, and the plaintiff's work history before and after the employment action. Back pay and front pay are the common measures, though restrictive-covenant disputes can also put an employer's lost profits at issue. Where a dispute reaches a class, the same measures are modeled across the class rather than one plaintiff at a time.
Types of cases include
Wrongful termination
Back pay, front pay, and lost benefits following a termination.
Discrimination and retaliation
Economic loss from adverse employment actions, including failure to promote.
Wage and hour
Unpaid wages, overtime, and misclassification, measured individually or across a class.
What we provide
Independent economic analysis available to plaintiff or defense counsel.
Our work centers on quantifying back pay from the date of the employment action, front pay where reinstatement is not available, lost fringe benefits such as employer retirement contributions and health coverage, and the offset for mitigation earnings. Future amounts are reduced to present value where the applicable standard requires it. The measurement of lost earning capacity follows the same methods used in personal-injury matters, applied to an employment record rather than a medical one.
Restrictive-covenant disputes can run in either direction. Where a covenant keeps a worker out of a market, the loss is measured against the earnings that worker would otherwise have received. Where a former employee's competition is alleged to have harmed the business, the measure is the employer's lost profits. Both turn on what the record shows about the relevant market, the customer relationships, and the period over which the restriction was enforceable.
Where a dispute is certified or proposed as a class, the same measures are modeled across the class using payroll, personnel, and compensation records, with the method used to extrapolate from those records disclosed in the report. Reports are written to satisfy FRCP 26(a)(2)(B), supported by deposition and trial testimony as needed.
Note: We do not provide legal advice. Retaining counsel identifies the applicable legal framework; we apply accepted economic methods to quantify losses.
Common questions
What counsel asks before retaining an economic expert.
What is the difference between back pay and front pay?
Back pay covers the period from the employment action through trial or resolution. Front pay covers future losses where reinstatement is not available or not sought. The period over which front pay runs depends on the facts of the case and the requirements of the jurisdiction.
How are mitigation earnings treated in an employment damages calculation?
Earnings obtained after the employment action, and in some jurisdictions earnings that could reasonably have been obtained, are offset against the claimed loss. What counts as reasonable mitigation is a legal question for counsel. We quantify the effect of the earnings record that results.
How are damages measured in a non-compete or restrictive-covenant dispute?
It depends on who claims the harm. Where a covenant restricts a worker, the measure is the earnings foregone during the restricted period. Where an employer alleges competitive harm, the measure is lost profits. Both require evidence about the relevant market and the enforceable period.
Can employment damages be calculated for a class rather than one plaintiff?
They can, where the records support it. Payroll and personnel data are often sufficient to model back pay, lost benefits, and mitigation across a class. The method used to extrapolate from the available records is disclosed in the report so that it can be tested.
Are lost fringe benefits included in an employment damages calculation?
They can be. Fringe benefits may include employer retirement contributions, health coverage, and the employer's share of payroll taxes. Whether each is included, and how it is valued, depends on the compensation record and the requirements of the case.
Where do your economists practice?
Our economists are based in Wisconsin and California. We have particular depth of experience in Wisconsin, Minnesota, Iowa, Illinois, and California, but regularly accept engagements throughout the United States. We provide expert economic analysis nationwide. Logan Kelly has provided expert testimony in federal and state courts across multiple jurisdictions; both economists are available for deposition and trial as needed.
Practice scope Federal and state courts nationwide.