The National Labor Relations Board’s top enforcement official has issued important guidance, which should make it easier for parties to settle unfair labor practice charges, and which narrows the situations where the Board will seek unique expanded remedies.
Background
From 2021 to 2024, the Board significantly changed the remedies it sought in ULP cases, and it also changed the conditions it required parties to accept in order to settle those cases. At default, the National Labor Relations Act permits the Board to seek and award “make whole” relief. This means the Board cannot, for example, award punitive damages or emotional distress damages. Historically, in cases where an employer has committed a ULP by discharging an employee, the Board typically has awarded the employee backpay and required the employer to reinstate them.
Over the past four years, however, the Board expanded the relief it seeks and awards in these cases. In late 2022, the Board held that it could compensate employees for all financial harm that “directly” or “foreseeably” stemmed from an employer’s ULP. (We covered this Thryv Inc. decision here.) For example, in a case where an employee is unlawfully discharged, this standard could entitle the employee to reimbursement for increased insurance premiums, having to purchase a new vehicle to replace an employer-provided vehicle, bank overdraft fees or relocation costs. The Board held that this relief should be standard in ULP cases.
Accordingly, former...
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