Employers that violate federal labor law must compensate workers to make up for the direct consequences of unfair labor practices, the National Labor Relations Board (NLRB) ruled on Dec. 13. This ruling adds consequential damages to the board's usual make-whole remedies. The board said it would apply this remedy retroactively to all cases currently pending.
The NLRB has a make-whole protocol for employees who are unfairly discharged, laid off or otherwise discriminated against to fully account for their actual economic losses. Historically, the remedies imposed included reinstatement of employment, backpay, payment of dues and fines, stopping unlawful rules or practices, or a notice posted at the workplace. The board's recent decision expands that list significantly for employers.
"Employees are not made whole until they are fully compensated for financial harms that they suffered as a result of unlawful conduct," said NLRB Chairman Lauren McFerran. "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."
For consequential damages to apply, the NLRB general counsel must present evidence proving the amount of the financial harm, that it was direct or foreseeable, and that it was due to the unfair labor practice. The employer or union could rebut that evidence.
The NLRB's interest in adding consequential damages...
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