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NLRB Expands Remedies for Unfair Labor Practices to Include Compensation for all Direct or Foreseeable Financial Harms to Workers

On December 13, 2022, The National Labor Relations Board (NLRB or the Board) issue a 3-2 decision in Thryv, Inc. that expands its “make-whole” remedy. The NLRB’s decision expressly clarifies that employees subject to an unfair labor practice (ULP) committed by their employer can now be compensated for all “direct or foreseeable pecuniary harms” suffered as a result of the ULP. This expanded remedy goes beyond traditional back pay and reinstatement that is generally available.

Unsurprisingly, the Board majority did not provide a thorough list of what “pecuniary harms” could be sought. Instead, the Board simply said employees may now be compensated for significant financial costs incurred as a result of an ULP such as out-of-pocket medical expenses, credit card debt, or other costs incurred to make ends meet. The General Counsel will have the burden to present evidence in order to establish the amount of pecuniary harm caused by showing such harm was a direct result of the ULP committed or was foreseeable at the time of the ULP was committed.

The case itself involved a software company that was alleged to have violated Sections 8(a)(1) and 8(a)(5) of the National Labor Relations Act (NLRA) by failing to bargain over layoffs with the local union representing its employees. Finding that the company violated the NLRA, the Board took it upon itself to examine and expand its statutory powers when it comes to “make-whole” remedies.

NLRB Chairman Lauren McFerran was quoted in the press release accompanying the decision as saying “The Board clearly has the authority to comprehensively address the effects of unfair labor practices. By standardizing the Board’s make-whole relief to fully include the direct or foreseeable financial harms suffered by affected employees we will better serve the important goals of the National Labor Relations Act.” This expanded remedy will apply to all cases that include a make whole remedy and will also be applied retroactively to cases currently pending.

This decision is troubling for employers as the NLRB continues to push boundaries of its statutory authority. If you have questions concerning this new law, please feel free to contact one of our labor and employment attorneys by calling (501) 371-9999.

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