On December 13, 2022, the National Labor Relations Board issued a decision that will substantially expand the relief available to an employee who prevails in an unfair labor practice charge proceeding. The Board’s decision in Thrive, Inc., 372 NLRB No. 22, holds that the standard “make-whole” remedy for an employee harmed by an employer’s unfair labor practice includes compensation for “all direct or foreseeable pecuniary harm” resulting from the illegal actions.
Traditionally, NLRB remedies for unfair labor practices have been limited to backpay and reinstatement. However, when the Board’s new General Counsel, Jennifer Abruzzo, took office in 2021, her office made clear that it was looking to expand remedies. In two General Counsel Memoranda, GC 21-07 (9/15/21) and GC 22-06 (6/23/22), the Board announced new efforts to secure additional relief for victims of unfair labor practices. Specifically, these Memoranda encourage Regional Directors to take advantage of the additional flexibility afforded by the settlement process to pursue “new and alternative remedies.”
The two memoranda listed a broad array of remedies that may have traditionally been thought to be unavailable under the NLRA. These include:
- Reimbursement for the loss of a home or car lost by an unlawfully terminated employee who could not meet loan payments;
- Compensation for damage to an unlawfully terminated employee’s credit rating;
- Credit card interest or late fees incurred by an unlawfully terminated employee so they can meet expenses;
- Penalties paid by an unlawfully terminated employee who took an early withdraw from a retirement account;
- Damages for losses incurred because an unlawfully terminated employee had to liquidate investments; and
- Reimbursing unions for bargaining costs during periods where an employer engaged in bad faith bargaining.
These remedies are in addition to more traditional remedies, such as the cost of securing replacement health insurance coverage, unreimbursed medical expenses, and moving expenses.
In the Thryv, Inc. decision, the Board ruled that the employer’s layoff violated the NLRA and ordered the company to compensate affected employees “for all direct or foreseeable pecuniary harms suffered as a result of the respondent’s unfair labor practice.” While the Board did not detail exactly what can be recovered, it is safe to assume that the General Counsel will be seeking the remedies set forth in the two GC memos.
Mechanically, the new remedies will be sought when the General Counsel presents evidence of harm after a finding of liability. The employer can challenge the evidence, arguing, for example, that it was not “direct or foreseeable” or that it would have occurred regardless of the employer’s illegal conduct. The burden of proof will be on the General Counsel to prove the damages, but the Board made clear that ambiguities in the evidence should be resolved in favor of the employee.