Two recent Fifth and Sixth Circuit appellate decisions have deepened a circuit split over the authority of the National Labor Relations Board (NLRB) to force employers to pay for the foreseeable harms stemming from unfair labor practices—a broad and largely unprecedented financial remedy the NLRB asserted it could order in its 2022 Thryv, Inc. decision. Both circuits joined the Third Circuit in holding that the National Labor Relations Act (NLRA) does not provide the NLRB with power to order such relief; the Ninth Circuit, however, has affirmed that such relief is consistent with the NLRA’s purpose.

Quick Hits

• The Fifth and Sixth Circuits recently rejected the NLRB’s Thryv remedial framework that had enabled the Board to order employers to pay damages for “all direct or foreseeable pecuniary harms” to aggrieved employees in unfair labor practice cases.
• The rulings affirm that the NLRB lacks statutory authority for the Thryv remedies and is limited to equitable remedies, such as reinstatement and backpay.
• The rulings also deepen a circuit split, as the Sixth, Fifth, and Third Circuits have all issued decisions opposing the NLRB’s interpretation of the NLRA, while the Ninth Circuit has permitted a broader interpretation that includes foreseeable damages.

Circuit Split

In Thryv, the NLRB announced that employers that engage in unfair labor practices—such as discriminatory firings—are liable for “all direct or foreseeable pecuniary harms” resulting from those practices....

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