A labor market survey (LMS) is one of the most practical ways a vocational expert can move from theory to reality. Occupational databases can suggest that jobs “exist,” but a survey helps answer the questions attorneys actually care about:
- Do these jobs exist in the relevant labor market?
- Are they available in a meaningful way (not just “listed once somewhere”)?
- What do employers require right now?
- What wages are realistic for someone with this background and these restrictions?
When done well, a labor market survey can strengthen (or challenge) opinions about employability, job access, and earning capacity. When done poorly, it can be easy to attack—especially on methodology, sampling, and how “availability” is defined.
This post breaks down how incidence and availability are researched, how surveys are documented, and how strong LMS work is typically defended.
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What is a labor market survey?
A labor market survey is a structured vocational research process used to assess whether identified occupations are realistically available to a specific individual in a defined geographic area, given relevant vocational and functional assumptions.
It often supports (or is paired with):
- Transferable Skills Analysis (TSA)
- Job access analysis
- Employability opinions
- Earning capacity opinions
In other words: a survey doesn’t usually start from scratch. It starts with a set of target occupations and tests whether those jobs are meaningfully present and realistically obtainable in the relevant market.
Key terms: job incidence vs job availability
These two concepts are related, but they are not interchangeable. A strong report distinguishes them clearly.
Job incidence
Incidence refers to how many jobs exist within an occupation in a given area (or broader region), typically drawn from published labor market datasets and occupational classification systems.
Incidence data is helpful because it provides a baseline of whether an occupation is a “real” part of the labor market. But incidence alone does not tell you whether jobs are open, accessible, or realistic for the individual.
Job availability
Availability is more practical: it refers to whether there are actual job opportunities that someone could pursue within the defined market and timeframe.
Availability is often evaluated through:
- Job posting research
- Employer outreach
- Hiring requirement review (credentials, experience, schedule, physical demands)
- Wage verification and entry-level realism
A defensible LMS explains how the survey translates incidence into an opinion about availability—and what limitations apply.
How a labor market survey is typically conducted
There are variations, but most defensible labor market surveys include these components.
Define the labor market
Before researching, the expert defines the market:
- Geography: radius, county set, commuting zone, or metro area
- Timeframe: what dates were reviewed (and why)
- Assumptions: restrictions/limitations, work schedule tolerance, transportation, language, and relevant vocational background
This matters because “availability” in a dense metro area is not the same as availability in a rural county with limited employers.
Start with target occupations
Most LMS work begins after a TSA or vocational evaluation identifies plausible occupational options.
If you want a refresher on how TSAs feed into later steps, see our recent blog post: What a Transferable Skills Analysis Really Shows
Research incidence and baseline market presence
This step commonly includes:
- Confirming the occupation exists in meaningful numbers in the relevant geography
- Comparing related occupational titles to avoid mismatches (e.g., a broad occupational group vs a narrower job title)
- Using multiple sources where appropriate to avoid relying on a single estimate
A strong report states what data sources were used and how occupational codes/titles were selected.
Evaluate real-world availability
This is where LMS work becomes case-relevant.
A typical approach includes a combination of:
- Job posting review: multiple platforms, filters, and dates
- Employer outreach: contacting employers to confirm requirements, hiring patterns, and wage ranges
- Requirement analysis: credentials, experience, scheduling, and physical/cognitive demands
- Wage research: validating whether wage assumptions align with entry-level hiring reality
Availability is not simply “the number of ads.” A good LMS explains what job postings represent (and what they don’t).
How job availability is researched and documented
Not every case requires the same depth, but these are the details that help surveys hold up under scrutiny.
Posting review: more than screenshots
A defensible posting review typically documents:
- Which sources were searched
- Date ranges and search criteria
- The job titles and related titles used (and why)
- What was included vs excluded (e.g., “requires a CDL,” “requires bilingual Spanish,” “requires 3+ years in role”)
You don’t want a survey that reads like: “We found jobs online.” You want a survey that shows a repeatable, transparent process.
Employer outreach: what to ask (and why it matters)
When employer contact is part of the methodology, outreach often focuses on practical questions such as:
- Is this position currently open or hired regularly?
- What credentials are required (degree/cert/license)?
- Is experience required or will the employer train?
- Are there essential physical demands that matter for restrictions?
- What is the realistic starting wage?
Employer outreach can make a survey more persuasive because it tests assumptions directly. It can also be attacked if it’s not documented carefully, so clarity matters.
Wage realism: “range” vs “reality”
Wage discussions are often where LMS work becomes damages-relevant.
A solid LMS addresses:
- Whether the wage is entry-level or experienced
- Whether full-time hours are realistic
- Whether the wage reflects the right geography
- Whether benefits or overtime assumptions are being implied (or not)
If earning capacity is the end goal, LMS is often one of the “load-bearing” supports for that opinion.
Learn more about KWVRS’s litigation-support services and vocational evaluation approach.
How strong labor market surveys are defended
When LMS opinions get challenged, the critiques tend to fall into predictable categories. Here’s how defensible work addresses them.
“Your market area is arbitrary”
Defense points typically include:
- The market definition is consistent with commuting feasibility and job access assumptions
- The geography aligns with known commuting patterns, transportation options, or residency assumptions
- Sensitivity checks: what changes if the radius expands or contracts?
A good survey explains the “why” behind the market boundary.
“You cherry-picked postings”
Surveys get attacked when they’re selective or vague.
Strong surveys reduce this risk by:
- Using consistent search criteria across sources
- Documenting exclusions clearly
- Presenting multiple postings, not a single “best” example
- Explaining that postings are a sample—not a census—and framing conclusions appropriately
“Postings don’t mean jobs are actually available”
True. Strong LMS work acknowledges this and uses postings as one data point—often alongside employer outreach or hiring pattern context.
What helps here is plain language:
- Postings show demand signals and requirements
- They don’t guarantee a hire
- That limitation is part of the analysis, not something to hide
“You didn’t account for the person’s restrictions”
This is a common and effective cross point.
Defensible LMS work ties availability back to assumptions:
- What restrictions were used (and the source)
- How those restrictions affect occupational fit and hiring requirements
- Whether alternative restriction scenarios were considered
When restrictions are disputed, presenting more than one scenario can make the work more durable.
“Incidence data is too broad to be meaningful”
If incidence data is based on broad occupational groups, it can overstate local presence.
Strong responses include:
- Explaining how occupational codes map to job titles
- Using narrower titles where appropriate
- Acknowledging the limits of aggregate data and supporting it with real-world checks
What attorneys should look for in an LMS
If you’re reviewing a labor market survey, these are the practical quality markers.
Methodology clarity
- Is the labor market defined with reasons (not just a radius)?
- Are dates, sources, and inclusion rules clear?
Occupational integrity
- Do the occupations actually match the background and assumptions?
- Are required credentials realistically attainable?
Availability logic
- Does the survey explain how findings support its conclusion?
- Does it distinguish “jobs exist” from “jobs are realistically obtainable”?
Documentation
- Are postings/employer contacts summarized clearly?
- Is wage data grounded in the local market and entry-level reality?
Where to use an LMS most effectively
Labor market surveys tend to add the most value when:
- Employability is disputed (“no jobs exist” vs “many jobs exist”)
- Earning capacity is a major damages component
- A TSA produces occupations that need real-world validation
- Job access limitations (transport, schedule, gaps) are central to the case theory
When the LMS is part of a cohesive vocational framework—rather than a standalone exhibit—it’s usually easier to defend and easier for the finder of fact to understand.
Next step: aligning LMS with the overall vocational opinion
A labor market survey is strongest when it connects cleanly to:
- the vocational history,
- the restriction assumptions,
- the occupational options,
- and the ultimate question in dispute (employability, job access, earning capacity).
If you’re looking for vocational support that integrates TSA, labor market research, and clear reporting built for litigation, explore KWVRS’s services.
