The use of an economist in labor and employment disputes: legal and practical considerations.

Do you represent employers? Employees? If so, how often do you evaluate the need for an economic expert? Lawyers who understand and routinely assess the need for an economist's expertise--whether on behalf of plaintiffs or defendants--may attain significantly better outcomes in settlement or at trial. Lawyers who defend employers may also benefit from an economist's insights for the purpose of avoiding claims altogether.

Labor and employment litigation, which for purposes of this article is defined liberally to include all administrative and judicial proceedings concerning claims of unfair or illegal workplace behavior(1) often have two attributes--mounds of statistical data and complex economic loss claims--that make economists a legitimate "must-have" resource in many situations. In some instances it may be impossible to correctly appraise a client's position without economic analysis. Yet the benefit from economic expertise may not always be obvious because the roles and methodologies of economists are not always easily defined.

This article identifies some of the uses for economists in labor and employment disputes. It is not all-inclusive. Nonetheless, it does illustrate the role of economics in all stages of this area of practice--before, during and after the life of a claim.

A Litigator's Swiss Army Knife

Litigation is generally a win-lose event. It demands the active use of strategic and tactical planning. Experts, whether retained for behind-the-scenes consulting or for testimony, can provide a decisive advantage over an adversary. Dr. David B. Graeven, president of Trial Behavior Consulting, Inc., a national jury consulting firm with offices in Florida, says economists can have a huge impact on the outcome of a case. "Our firm has conducted post trial interviews with thousands of jurors. Results of these interviews have shown that economists can have a very significant impact on the outcome of the case."

In labor and employment disputes, economists function as a sort of lawyer's Swiss Army knife. Economists can be hired before litigation arises to evaluate an employer's hiring practices. They can be used in litigation for confidential, work-product privileged consulting, or for use as disclosed experts. The proof required for certain liability and damage issues in labor and employment cases is beyond the province of lay witnesses, including statistical evidence of disparities in employment actions (e.g., hiring, promotions, terminations, salary administration) and most calculations and testimony relating to lost past and future wages and benefits. The classic distinction between expert and lay witnesses is of course what they can say. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993), the U.S. Supreme Court said that "[un]like an ordinary witness ... an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation." An expert can testify about her or his opinion; a lay witness is generally limited to facts.(2)

After a dispute ends, an economist can analyze an employer's hiring and other practices from a statistical view and provide guidance on developing policies consistent with the outcome of the dispute. An economist can also serve as a monitor of future employment decisions (e.g., hiring, firing, and promotions) if active monitoring is part of the agreed or required relief.

Economists and Kumho/Daubert

A general understanding of the admissibility standards for expert testimony is useful in evaluating the role an economist may play in a dispute. In the last 10 years the U.S. Supreme Court issued three major decisions on this topic, and those decisions now provide the basic framework for a lawyer's analysis.

One reason the Court may have seen fit to address this area of the law may have been the marked increase, during the 1980s, in the number of consultants offering paid "expert" testimony on a range of topics that went far beyond traditional and, some said, provable subjects. Popular outcries rose to a crescendo in the early 1990s, to the point where books on abuses in expert testimony were even being aimed at the general public, most notably Galileo's Revenge: Junk Science In The Courtroom.(3) The term "junk science" referred to the flood of new scientific theories being asserted that were not based on sound, accepted scientific and medical principles. Although the controversy did not target economists, the changes affect virtually any expert a party may wish to call. The trilogy of decisions on this topic are Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

In Daubert, the first of these cases, the Court held that it is the Federal Rules of Evidence, and not the long-accepted rule in Frye v. U.S., 293 F. 1013 (D.C. App. 1923), that governs the admissibility of expert scientific testimony in a federal trial. This created a new standard for the admissibility of expert testimony in federal court, and likely in many state courts as well.

The Frye decision, in general terms, stands "for the rule that expert opinion based on a scientific technique is inadmissible unless the technique is `generally accepted' as reliable in the relevant scientific community."(4) Using this "general acceptance" standard, the Frye Court of Appeals ruled that a mechanical test for deception, which is essentially a predecessor to the polygraph examination, "has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made." Frye, 293 F. 1013, 1014. For the 70 years that followed the release of the 1923 decision, Frye served as the cornerstone of admissibility for expert testimony, sometimes even being mistakenly cited as a U.S. Supreme Court decision. (Interestingly, the eight-paragraph Frye decision is just 667 words in length and contains no citations to any authority whatsoever.)

In 1993, the U.S. Supreme Court in Daubert ruled that the 1975 adoption of the Federal Rules of Evidence superseded not only Frye's purported evidentiary standard but also "common law" evidentiary principles in general. See generally Daubert, 509 U.S. 579, 587-590. Finding that "[n]othing in the test of [Federal Rule of Evidence 702] establishes `general acceptance' as an absolute prerequisite to admissibility," 509 U.S. 579, 588, the Court held that the Federal Rules of Evidence are the proper focus of questions of admissibility regarding expert testimony. In particular, Federal Rule of Evidence 702 provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Under the Daubert standard, then, general acceptance of an expert's theory within the expert's field of study is not required. This does not, however, mean that it is irrelevant. Rather, general acceptance is only one of several factors a court can consider in determining the admissibility of expert testimony. Among the examples the Daubert Court cited as appropriate for a trial judge to consider are 1) whether the theory or theories underlying the expert's proposed testimony can be (and has been) tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) in the case of a particular scientific technique, the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation; and 4) in a specific nod to the Frye test, whether the test has "general acceptance." Daubert, 509 U.S. 579, 593-595.

There was some uncertainty after the Daubert decision about whether it applied to nonscientific experts. However, the Supreme Court explicitly answered this in the affirmative in its 1999 Kumho Tire decision: "This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not scientists. We conclude that Daubert's general holding--setting forth the trial judge's general `gatekeeping' obligation--applies not only to testimony based on `scientific' knowledge, but also to testimony based on `technical' and `other specialized' knowledge." Kumho Tire, 526 U.S. 137.

Between the issuance of Daubert and Kumho Tire, the Court decided Joiner. This decision establishes that the abuse of discretion standard of review applies to a trial court's Daubert rulings on the admissibility of expert witness testimony and evidence. Joiner, 522 U.S. 136.

Florida Admissibility Standards

The Florida Supreme Court continues to adhere to the Frye test and has repeatedly declined to follow the approach in Daubert. In fact, it rejected Daubert's approach several years before the U.S. Supreme Court formally adopted it for use in federal courts.

In Stokes v. State, 548 So. 2d 188 (Fla. 1989), the Florida high court discussed the balancing test that was later approved in Daubert and which was being used by some courts at the time, and ultimately concluded that "[the] balancing approach may well take the concept of flexibility too far." Stokes, 548 So. 2d 188, 194. Just four months after Daubert was decided, the Florida Supreme Court confirmed in an almost offhand way that it would not follow Daubert. In Flanagan v. State, 625 So. 2d 827 (Fla. 1993), the court relied on the Frye test to reject an expert's "sex offender profile" analysis, and, in a footnote that contains no additional explanation, acknowledged the Daubert decision but added that "Florida continues to adhere to the Frye test for the admissibility of scientific opinions." Flanagan, 625 So. 2d 830.

In subsequent decisions, the Florida Supreme Court has firmly communicated its adherence to Frye as the governing standard in Florida. Thus, in Hadden v. State, 690 So. 2d 573 (Fla. 1997), the high court reiterated that "Our specific adoption of [Frye] after the enactment of the evidence code manifests our intent to use the Frye test as the proper standard for admitting novel scientific evidence in Florida, even though the Frye test is not set forth in the evidence code." [Emphasis added.] Hadden, 690 So. 2d 573, 578. It said that "we will not permit factual issues to be resolved on the basis of opinions which have yet to achieve general acceptance in the relevant scientific community; to do otherwise would permit resolutions based upon evidence which has not been demonstrated to be sufficiently reliable and would thereby cast doubt on the reliability of the factual resolutions." Hadden, 690 So. 2d 573, 578.

Consequently, in a Florida state courtroom, absent this showing, expert testimony based on theories or tests that have not gained general acceptance remains inadmissible. With this difference in mind, a plaintiff may wish to proceed in federal court if the expected proof involves novel scientific or technical theories, and a defendant should consider removing state-filed cases to federal court if its case depends on such evidence.

No reported case could be found in which the Florida Supreme Court has had occasion to address the U.S. Supreme Court's two subsequent decisions in 1997 (Joiner) and 1999 (Kumho Tire), and Florida courts continue to apply the Frye test.(5)

The Frye test involves four parts. In Ramirez v. State, 651 So. 2d 1164 (Fla. 1995), the court outlined them, noting that the first three steps require determinations by the trial judge. First, a judge must decide whether the expert testimony will assist the jury in understanding the evidence or in determining a fact in issue. Second, a decision must be made whether the expert's testimony is based on a scientific principle or discovery that is "sufficiently established to have gained general acceptance in the particular field in which it belongs" under the Frye test. Third, the court must determine whether the particular expert witness is qualified to present opinion evidence on the subject in issue, and if the first three steps are answered in the affirmative. If these three elements are satisfied, the "the judge may allow the expert to present an opinion to the jury, for which the jury can determine the credibility of the expert's opinion, which it is free to accept or reject." Ramirez, 651 So. 2d at 1167.

The "general acceptance" under Frye must be established by a preponderance of the evidence. Ramirez, 651 So. 2d 1164, 1168. The failure of a party in a Florida state court to object to evidence that does not meet the Frye test results in waiver of the objection. Hadden, 690 So. 2d 573, 580. On appeal, Florida courts use a de novo standard of review and review a trial court's ruling as a matter of law rather than under an abuse-of-discretion standard. The reviewing court will "consider the issue of general acceptance at the time of appeal rather than at the time of trial." Hadden, 690 So. 2d 573, 579-580. As a rule, the stability of economic theory is such that an economist's testimony nearly always relies on generally accepted economic theory and statistical methods. The economist's misapplication of an established theory or method is more common than his or her reliance on novel theories. Motions in limine, therefore, may still be effective in the courtroom.

Before a Lawsuit is Filed

Economists can play a vital role in helping employers avoid labor and employment disputes. They can also help parties, whether plaintiff or defendant, in analyzing information to assess the strength of an anticipated claim or available defenses. Prelitigation uses for an economist include, but are not limited to, the following:

* Statistical auditing of an employer's labor and employment practices. Most employment actions that materially affect employees, and which are commonly the subject of discrimination claims, can be analyzed by an economist for patterns that suggest unequal (albeit not necessarily unfair) treatment of one or more protected classes of individuals (e.g., race, age, gender, disability, and national origin). This includes an employer's practices with regard to salaries and wages, promotions, demotions, hiring decisions and terminations. Here an economist can identify possible employment patterns adverse to a group of employees protected under the law. This kind of analysis may be essential before a major entity-wide employment action, such as a reduction in force or other reorganization. The economist, prior to the employment action being taken, can identify potential problem areas and recommend modifications to the process.

* Review of the employer's equal opportunity (EEO) plan and/or affirmative action plan (AAP). Here an economist can conduct analyses to see if any shortfalls in percentages of minorities or other population groups are statistically significant. Some variations are to be expected, as a workforce will never perfectly model the population in general. However, variations beyond a certain point (measured in units of `standard deviations') can serve as the basis for discrimination claims against the employer.(6) An economist can also help determine if the appropriate external labor market data are being used in the AAP or EEO plan and whether the jobs grouped together into "job groups" are appropriately grouped for the required analysis (i.e., will provide a reasonable promotion, hiring and termination analysis, as required in the backup for the AAP).

* Review of the employer's human resource databases. In some instances, an employer's internal records may be insufficient to determine whether hiring or other employment policies are consistent with federal and state antidiscrimination laws. In this instance an economist helps determine whether the employer's computer or paper information is sufficient for analyses. If it is not, the economist can explain what additional information should be maintained (and the proper format) for simple analysis. An economist can also assess the accuracy of the data and the inconsistencies within the various data sources. Finally, an economist can provide input into systems design for good employment management.

* Industry comparison studies in union negotiations. Economists are often retained during union negotiations to determine whether provisions of the proposed contracts are consistent with the contracts between unions and other employers in the same industry. For example, management may claim that their proposed general wage increase (GWI) is equal to or better than that given by other employers in the industry. Economists study the union contracts of the companies in the market and determine if the provisions are as generous as claimed, relative to others in the industry.

After a Lawsuit is Filed

* Assist in determining evidence of a prima facie case. In the earliest stages of an employment-related lawsuit, counsel for an employer is likely to have access to a wealth of data relevant to the employee's claim. Claims for which early retention of an economist may be justified include failure-to-promote claims, which may trigger discovery on entity-wide advancements; failure-to-hire claims; and equal pay claims. In these situations, the economist can provide early and crucial insight into the substance of the lawsuit by reviewing the allegations and by offering proposals or advice on the analyses to which the attorneys may want to respond.

* Providing the attorney with a preliminary estimate of the value of economic losses. Both the plaintiffs and the defendant's lawyers may benefit from a best- and worst-case scenario of economic losses. This can help the attorneys establish parameters for the case.

* Assist in discovery. Discrimination claims that allege disparities in hiring, advancement or pay are likely to trigger the need for entity-wide data on these employment actions. It is not always clear, however, what kind of documentation should be considered or produced to assess these claims. Economists often have access to a vast array of information about financial or statistical evidence that can prove or disprove these claims. Consequently, an economist can help counsel with document requests, or with the preparation of responses that decline requests for production in which the adversary is seeking irrelevant information. An economist can also help counsel set up computer databases to organize, sift through and analyze information about the claims. By gaining an understanding of the employment process at issue, the economist can help the employer determine what information is (or will be) relevant to the economic and statistical analyses. The economist is often used to assist the attorney in gaining an understanding of the various sources of data maintained by the employer and preparing them in response to the discovery requests. The economist often requires certain data for their required analysis and this expert discovery helps to assist attorneys in answering interrogatories, requests for production, and requests for admissions.

* Assist the attorney in responding to class certification issues. Here an economist can provide statistical analyses on the numerosity, typicality, and commonality claims. An economist can also identify organizations or jobs or work groups that differ (or do not differ) sufficiently that the employment issues cannot be the same. He or she can also identify and illuminate the process by which decisions are made to show commonality or typicality. This example illustrates the importance of retaining an economist as early as possible in certain cases.

* Review the opposing economic and statistical evidence put forth by the opposing expert. In some cases a party faced with an opposing economist will not retain their own expert, a strategy fraught with risk. A judge or jury may interpret the absence of rebuttal testimony as implicit acceptance on the part of the opposing attorneys and thus they may be more likely to accept the results of the opposing economist's analysis. A retained expert can verify the opposing expert's report and/or deposition testimony for its accuracy, and can evaluate the methodology and its professional quality. Economic analyses are often plagued by methodological or data weaknesses such as poor data (errors, omissions, inconsistencies), misapplied procedures, assertions or assumptions contrary to the evidence in the case, or a study design that introduces a bias in the results. In other cases, counsel for one party may decide against retaining an economist solely because the opposition has not retained one. If the case addresses economic issues, this is precisely the time to retain an economist--someone who will go through the proceedings unchallenged by a rebuttal witness.

* Assist the attorney in preparing for the deposition of the opposing expert. As a general rule, a lawyer who lacks specific expertise in the opposing expert's field is going to be at a disadvantage in a deposition and/or at trial. (A useful analogy is the occasional match between a pro se litigant and an opposing counsel. Opportunities abound for the more educated and experienced combatant to score points.) In a deposition, an expert may be able to deftly deflect the questions posed by an uninformed examiner. In most fields of expertise, including law, there are varying opinions and techniques, and the examining lawyer must be in a position to fully explore those with an opposing economist. In this situation, a retained expert economist can aid the lawyer in writing deposition questions, and can attend the deposition to provide follow-up questions. Where a party does not intend to match the opposing party's economist at trial with one of its own, it may still be a wise idea to retain an economist, if for nothing else than for the purpose of assisting in the deposition of the opposing expert.

* Assist the attorney in preparing a possible Daubert motion to exclude the opposing expert's opinions in the case. Perhaps one of the less obvious uses of an economist, at least in a behind-the-scenes role, is to help prepare a Daubert/Kumho Tire motion seeking the exclusion of an opposing economist. For example, an economist could help show that the opposing economist's methods are either irrelevant to the issues of the case or they do not adhere to generally accepted labor economic practices. Here again, an economist will likely be in the best position to help the lawyer explain why, from the view of labor economics, the proposed expert's opinion should be deemed inadmissible.

* Assist the attorney in preparing for mediation. Preliminary statistical results and/or economic loss calculations are often used to establish boundaries for mediation and to help the mediator determine the worth of the case. The analysis of the expert may have identified the areas which are most sensitive and key to the settlement. In cases involving large groups of employees, the use of an economist here may be essential.

* Full-scale statistical analysis of the employment issues in the case. Assuming a lawsuit is filed, an economist can conduct a comprehensive analysis of the relevant documents for use at trial. This involves gaining a complete and detailed understanding of the employment processes. Here the economist will want to know who the decision-makers were, what factors were considered in the decision-making process, what organization units were involved, and all the data pertaining to the employment action at issue.

* Conducting an analysis of economic losses. Economic losses may be calculated several ways. Depending on the number of plaintiffs, the economic damages may be calculated for the group of plaintiffs as a whole or for separate individuals. In this situation, an economist works with the attorney to identify and obtain the data and/or documents that would allow an estimation of economic losses. These documents often include personnel files, tax forms, Summary Plan Descriptions (SPDs) for fringe benefit plans, and employment records (pay and benefits) from any subsequent employers.

* Assist in identifying and evaluating effective methods for presenting economic and/or statistical results to jury or judge. In an age when juries are likely to be accustomed to a visual presentation of information, the presentation of expert economic testimony may, to say the least, require some thought to ensure its best delivery. Where significant expert testimony or evidence is expected, one or more brainstorming sessions with the economist will be useful on the specific subject of presentation. During this process, the lawyer and economist may find several different ways to present the same information, some of which will be more striking than the others. Also, the lawyer may be able to pose analogies to the economist to see if there is a simpler way to help the jury understand the meaning of the evidence. Analogies are often a useful tool with juries, and are helpful devices for use in conjunction with sophisticated principles that the average juror may not immediately appreciate. The goal here is to ensure that the jurors do not need to have a degree in economics to get the point.

* Assisting the attorney in direct examination of the expert. Here the economist can help the lawyer formulate the questions the economist needs to be asked on direct examination to ensure the desired responses. Inartful examination can lead one's own retained expert to respectfully disagree with the questions being posed. Even a limited amount of confusion between a lawyer and the expert in front of the jury can have dire consequences for this important aspect of an employment lawsuit.

* Assisting the attorney in the cross-examination of the opposing expert. As in the instance of an opposing expert's deposition, an economist can take the opposing expert's report and/or deposition and construct a framework for effective cross-examination.

* Testify at deposition, settlement conference, or trial.

* Prepare graphical and tabular exhibits for trial. Many economics research firms are well-accustomed to preparing sophisticated graphics that reflect their research and professional opinions. In some instances a retained expert may be able to prepare her or his own graphics for use at trial. At a minimum, they can provide substantial input into the creation of trial exhibits that accurately and easily convey the substance of their testimony. This service can be negotiated as part of the cost of retaining the expert or separately, but the charges are likely to be substantially less than if the same exhibits are prepared by an independent graphics design firm, who may not be accustomed to the specialized needs of economic data.

After The Litigation

* Statistical monitoring of the employer's practices to minimize the chances of future lawsuits. Once a lawsuit has concluded, the employer's counsel may recommend periodic reviews of the client entity's compensation, promotion, hiring, and termination practices, among others. This kind of routine analysis permits employers to make adjustments to the hiring practices to avoid statistically meaningful variations.

* Helping employers create and maintain their own data files and statistical procedures. Some employers may not want to retain outside consultants on a regular basis to monitor data generated by various employment practices. Too, some employers have their own internal staff and systems that, with appropriate training, would allow them to conduct their own analyses. Economists can help train designated staff to provide them with the analytical skills that would allow them to efficiently conduct their own self-monitoring analyses.

* Preparing reports and analyses consistent with consent decrees or other settlement or court orders derived from the lawsuit's resolution. Courts may sometimes issue injunctive relief requiring the employer to provide periodic updates on hiring practices, or forbidding an employer from engaging in certain future employment practices. The federal Equal Employment Opportunity Commission, Department of Labor, or state administrative agencies such as the Florida Commission on Human Relations may enter into settlement agreements requiring an employer to provide information about internal hiring, firing, promotional or other decisions. In these cases, an economist can guide an employer in deciding how to maintain and retrieve information sought by the courts or regulatory agencies.

Conclusion

The value of economists should not be overlooked in labor and employment law disputes. Economists can provide key insights into evidence on liability and damages, and can also serve as disclosed or undisclosed expert witnesses. By properly evaluating the need for an economist in these cases, both plaintiffs and defendants can better advocate their clients' interests.

(1) Discrimination based on race, color, religion, sex and/or national origin is prohibited by Title VII of the Civil Rights Act of 1964 (Pub. L. 88-352) (Title VII), as amended, as it appears at 42 U.S.C. [subsections] 2000e et seq., and by many state civil rights acts, including the Florida Civil Rights Act. See FLA. STAT. ch. 760. Disability discrimination is prohibited by, among other laws, the Americans With Disabilities Act of 1990, 42 U.S.C.A. [subsections] 12101 et seq., and by many state civil rights acts, including the Florida Civil Rights Act. See FLA. STAT. ch. 760. Age discrimination is prohibited at the federal level by the Age Discrimination and Employment Act of 1967, 29 U.S.C.A. [subsections] 621 et seq., and by many state civil rights acts, including the Florida Civil Rights Act. See FLA. STAT. ch. 760. The federal Equal Pay Act of 1963, 29 U.S.C.A. [sections] 206, prohibits sex-based wage discrimination between men and women in the same establishment who are performing under similar working conditions.

(2) In terms of expert testimony from an economist, "[a]n economist, for example, is allowed to testify that a particular pattern of pricing indicates that the defendant participated in a price-fixing conspiracy, whereas the lay witness could testify only to what the prices were. U.S. v. Williams, 81 F.3d 1434, 1442 (7th Cir. 1996).

(3) PETER HUBER, GALILEO'S REVENGE: JUNK SCIENCE IN THE COURTROOM (1993); see also DAVID FAIGMAN, LEGAL ALCHEMY: THE USE AND MISUSE OF SCIENCE IN THE LAW (1999).

(4) Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (quoting from the syllabus, which is prepared by the Reporter of the Decisions for the convenience of the reader).

(5) E.g., Farrill v. State, Case No. 2D98-2024 (2d D.C.A. Op. filed April 14, 2000) (Altenbernd, J., concurring opinion, noting Florida Supreme Court's post-Daubert adherence to Frye test, as reflected in Brim v. State, 695 So. 2d 298 (Fla. 1997), despite Supreme Court's adoption of more lenient standard); E.I. Du Pont De Nemours & Co., Inc. v. Castillo ex rel. Castillo, 1999 WL 71598, 24 Fla. L. Weekly D448, (Fla. App. 3d Dist. 1999) (applying Frye test).

(6) While courts have often referred to a standard deviation of "greater than two or three standard deviations" to be statistically significant, Hazelwood School District v. United States, 433 U.S. 299, 308 n.14 (1977), the courts have also cautioned that there is no "particular number of `standard deviations' [which] can determine whether a plaintiff has made out a prima facie case in the complex area of employment discrimination" and have generally adopted a case-by-case approach. See, e.g., Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 995 n.3 (1988).

James Garrity is a trial lawyer with a statewide practice concentrating in federal and state labor and employment issues at McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A., a law firm with offices in seven Florida cities. Mr. Garrity is a frequent author and lecturer on federal and state workplace issues.

Paul F. White, Ph.D., is vice president and senior research economist at Economic Research Services, Inc., a research firm with offices in Florida and California. Dr. White received his Ph.D. in labor/health economics from North Carolina State University.

This column is submitted on behalf of the Labor and Employment Law Section, Richard C. McCrea, Jr., chair, and F. Damon Kitchen, editor.