December never is a “slow” month in “labor law land.” Even though offices are winding down and some are closing for the holidays, the National Labor Relations Board (the “Board”) always enjoys dropping a few seismic cases for unions/employees/employers to enjoy, huddling next to their fires. This year, the Board was in an especially giving mood, gifting two favorable decisions to unions and employees.

First, the Board redefined what constitutes a “make whole” remedy, paving the way for damages above and beyond backpay, frontpay, and interest. In a 3-2 decision in a case called Thryv, Inc., the Democratic majority clarified that a “make whole” award must compensate affected employees for “all direct or foreseeable pecuniary harms” resulting from the employer’s unlawful conduct. The decision defines “direct harms” as “those in which an employee’s loss was the direct result of the [employer’s] illegal conduct” and “foreseeable harms” as “those which the [employer] knew or should have known would be likely to result from its violation of the Act, regardless of its intentions.” Examples of foreseeable pecuniary harms could include expenses for transportation, room, and Board; legal expenses and fees; medical expenses incurred, including any increases in premiums, copays, coinsurance, deductibles, other out-of-pocket expenses, and any unpaid medical bills; search-for-work and interim employment expenses; interest and late fees on credit cards, etc. The dissenting members’...

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