We have been tracking the ongoing challenges to the National Labor Relations Board’s (“NLRB” or “Board”) power to issue enhanced remedies under Thryv, Inc., 372 NLRB No. 22 (2022). In Thryv, the Board held that employees aggrieved by an unfair labor practice (“ULP”) charge under the National Labor Relations Act (“NLRA” or “Act”) could seek compensation from employers for “all direct or foreseeable pecuniary harm.” (See here, here, here, and here.)

In the latest development, on November 5, 2025, a split Sixth Circuit panel in a published opinion aligned with the Third and Fifth Circuits in rejecting the NLRB’s enhanced remedies under Thryv as a violation of the Act and U.S. Constitution. By contrast, the Ninth Circuit upheld Thryv remedies. In joining the ongoing circuit split, the Sixth Circuit’s rejection of Thryv increases the likelihood that the U.S. Supreme Court will eventually resolve this issue.

Echoing the rationale of the Third and Fifth Circuits, the Sixth Circuit held that the Board’s decision in Thryv violated the NLRA and Constitution for the following reasons:

• Congress only permitted the Board to seek equitable remedies under the NLRA.Section 10(c) of the Act requires employers to “cease and desist” ULPs and “take such affirmative action including restatement of employees with or without back pay, as will effectuate” the Act’s policies. The Sixth Circuit rejected the Board’s argument that “affirmative action” includes “all types of relief, including those...

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