Freelancing and gig work are no longer fringe. By the mid-2020s, tens of millions of Americans earn income through contract, platform, or self-employed work, often combining several income streams at once. For vocational experts and attorneys, this raises a key question:
How do you assess earning capacity when a person doesn’t have a single “job” in the traditional sense?
This post looks at how vocational evaluations can address gig workers and high-earning freelancers in a way that is fair, realistic, and usable in damages calculations.
Why the Gig Economy Matters in Damages Cases
In many injury, employment, and family-law cases, the person at the center of the dispute:
- Drives for ride-share or delivery services
- Works as a creative or technical freelancer
- Runs a small online business or consulting practice
- Mixes W-2, 1099, and platform-based income
A traditional evaluation model that assumes one employer, one job title, and a stable salary can miss important parts of the picture. That can lead to:
- Understating earning capacity when past records look “thin” but omit cash or platform income
- Overstating stability by projecting short-term surges in gig income as permanent
- Ignoring the way injuries or limitations affect the person’s ability to juggle multiple roles
A thoughtful vocational evaluation treats gig work as a legitimate labor pattern and analyzes it with the same structure used for traditional employment—just with more moving parts.
Understanding the Gig Worker’s Baseline
Before anyone talks about damages or future earning capacity, the evaluator needs a clear baseline. For gig and freelance workers, that baseline usually involves several components.
Income Patterns, Not Just Annual Totals
Instead of focusing only on last year’s total income, a useful evaluation looks at:
- Multi-year trends: Did income grow, shrink, or fluctuate widely over several years?
- Seasonality: Do certain months or quarters always spike or dip?
- Role mix: How much came from each platform, client type, or service line?
Bank statements, 1099s, platform dashboards, and basic bookkeeping records can be more informative than a single tax return, especially when the person mixes business and personal accounts.
Time Investment and Capacity
With gig work, hours matter as much as dollars. A strong evaluation will consider:
- How many hours per week the person actually worked across all gigs
- When those hours occurred (nights, weekends, irregular windows)
- How much time they spent on unpaid but necessary tasks (marketing, admin, travel)
This helps the evaluator understand whether income came from simply “working more,” from higher pricing, or from more efficient use of time.
Skills, Platforms, and Client Base
A gig worker’s earning capacity is tied to:
- Transferable skills (driving, design, coding, tutoring, content creation, etc.)
- Access to platforms and tools (apps, software, online marketplaces)
- The strength and diversity of their client base
Injuries and limitations can affect any of these elements—physically, cognitively, or by limiting mobility and available hours.
How Injury or Limitation Interacts With Gig Work
The impact of injury or disability on a gig worker can look very different from the impact on a traditional employee.
Physical and Cognitive Demands
Consider a few examples:
- A rideshare driver with a spinal injury may no longer tolerate long hours sitting or repetitive driving.
- A freelance videographer with shoulder limitations may struggle with equipment handling and travel.
- A content creator with cognitive symptoms (brain injury, long COVID, certain medications) may have reduced concentration, slower output, or difficulty managing deadlines.
Vocational evaluations should:
- Map limitations to specific tasks in each gig role
- Distinguish between what can be modified (shorter shifts, adaptive equipment, remote work) and what cannot
- Consider whether the person can maintain multiple roles, or must focus on fewer, more manageable ones
Volatility and Risk
Gig income is often volatile even before an injury. Afterward, volatility can increase:
- A reduced ability to “push through” lean periods with extra hours
- Added missed work due to medical appointments or flare-ups
- Loss of certain high-paying but physically demanding gigs
When assessing earning capacity, it is not enough to plug in a single “average” number. The evaluation should acknowledge the pattern of volatility and how injury may change both the level and stability of earnings.
Building a Realistic Earning-Capacity Picture for Gig Workers
Even with these complexities, you can still reach a clear, defensible view of earning capacity.
Use Ranges, Not Single-Point Estimates
For gig workers, a realistic opinion often uses ranges:
- Income range based on documented history and comparable workers
- High/low scenarios reflecting typical variation, not outlier years
- Short-term vs. long-term ranges if retraining or adjustment is expected
This approach lines up better with how gig earnings actually behave and can still be used by economists to model damages.
Anchor Opinions in Real-World Data
Where possible, vocational opinions should draw on:
- Platform and industry reports for typical earnings in a given region
- Labor market data for similar self-employed or contract roles
- Fee and rate information from comparable service providers
These sources don’t replace individual history, but they help test whether past income was unusually high, unusually low, or broadly consistent with the market.
Distinguish “Effort” From “Capacity”
One subtle but important distinction: capacity is about what the person can reasonably earn with typical effort, not what they could theoretically earn by working every waking hour.
Evaluations should ask:
- What effort level was sustainable before the injury—40 hours a week? 60+ hours?
- Is that effort level still realistic, given the current condition and treatment plan?
- If the person used to “overwork” to reach a certain income, should the evaluation assume that pattern continues indefinitely?
For damages purposes, a sustainable level of effort is usually more defensible than a best-case scenario built on burnout-level hours.
Consider Diversification of Income Streams
Many gig workers survive by diversifying:
- Driving plus food delivery
- Freelancing plus teaching or coaching
- Creative work plus part-time employment
An injury may close some doors but leave others open—or even push the person to lean more on less physically demanding skills. A careful evaluation:
- Identifies which streams remain realistic
- Evaluates whether remaining streams can grow to offset lost ones
- Avoids assuming total collapse of all income when only certain roles are affected
Gig Work in Specific Case Types
Personal Injury and Workers’ Compensation
In injury cases, the key questions often include:
- What was the realistic pre-injury earning pattern across gigs?
- Which roles are no longer feasible, and which remain?
- How does that change both average income and volatility?
A good report will compare “before” and “after” using actual records rather than speculation.
Employment and Misclassification Cases
For misclassification or wrongful termination cases involving contractors:
- Vocational experts can help the court understand what income the person could reasonably earn in contractor roles vs. traditional employment.
- They can also explain how the loss of a major platform or client affects earning capacity and how long replacement is likely to take.
Family Law and Support
In family law, freelance and gig income complicates support calculations. Vocational evaluations can:
- Clarify an average earning capacity across multiple years
- Explain how injury, caregiving, or schedule limits affect the mix of gigs
- Provide a grounded earnings range that the court can use for support worksheets, rather than relying on one unusually high or low year
Practical Tips for Attorneys Working With Gig-Economy Clients
Bring Complete Financial Records, Not Just Tax Returns
Encourage clients to gather:
- 1099s from platforms and major clients
- Platform income summaries and dashboards
- Bank statements showing deposits from gig work
- Any simple bookkeeping or invoicing they maintain
These materials often reveal patterns that a single tax form cannot.
Clarify How the Client Actually Works
In prep, ask your client:
- What a “typical” week looked like before the injury or dispute
- Which platforms or services were most important
- How they balanced work with caregiving or other responsibilities
This information helps the evaluator build a realistic, person-specific profile rather than relying solely on generic gig stereotypes.
Coordinate Vocational and Economic Opinions
When a forensic economist is also involved, alignment matters:
- Make sure the economist uses the same earning-capacity ranges and timelines described in the vocational report.
- Ask both experts to be explicit about assumptions, especially around hours, seasonality, and role mix.
Consistency across disciplines strengthens the overall damages presentation.
The gig economy has changed how many people work—and how their losses should be evaluated.
Vocational evaluations that take gig patterns seriously can give courts and claims professionals a more accurate picture of earning capacity, especially when injury or limitation makes certain types of gig work unsustainable.
For more background on related topics, you may find these resources helpful:
- Vocational Evaluations Explained
- What Attorneys Should Know About Vocational Forensic Evaluations
- Forensic Economics 101: Collaborating with Economists
If you are handling a case involving gig workers or high-earning freelancers and need a structured view of earning capacity, please contact us.
Frequently Asked Questions
Q: Are gig workers treated differently than traditional employees in vocational evaluations?
The core principles are the same—skills, limitations, and labor market realities—but the evaluation must account for multiple income streams, irregular hours, and volatility.
Q: What if the client’s records are messy or incomplete?
Evaluators can often reconstruct patterns using bank deposits, platform summaries, and reasonable assumptions. The report should be clear about any gaps and how they were handled.
Q: Can a vocational expert assume a gig worker will switch to a traditional job after an injury?
Only if the evidence supports that as a realistic path. Any shift from gig work to traditional employment should be grounded in skills, openings, and the person’s situation, not just preference.
Q: How far back should you look at income history for a gig worker?
Multiple years are usually helpful, especially if income has grown or fluctuated. Short windows can be misleading if they capture only a boom or a slump.
Q: Do courts accept vocational opinions about gig and platform work?
Yes. Courts regularly hear testimony involving self-employment and gig income. Clear methods, transparent data, and realistic assumptions are more important than the label on the work.
