by Alexander A. Gonzalez
On December 13, 2022, the National Labor Relations Board clarified its make-whole remedy standard to the benefit of employees nationwide. In Thryv, Inc.[1], the Board expanded the available remedies for employees who were victims of unfair labor practices. Whereas the previous standard permitted Administrative Law Judges to award reinstatement and back pay for lost wages to affected employees, the new standard expands to include “any and all direct or foreseeable” pecuniary harms that resulted from an unfair labor practice.[2]
In an effort to recognize the full scope of harm that unfair labor practices may inflict upon employees, the Biden Board will implement this new standard for all future unfair labor practice cases as well as all currently pending cases.[3] This change reflects the goals of the National Labor Relations Act to restore employees to the position they would have been in but for the unfair labor practice of their employer.
When presenting these cases, the General Counsel must present evidence in the compliance proceedings proving: (1) the amount of financial harm that was (2) “direct” or “foreseeable” and (3) caused by the employer’s unfair labor practice.[4] Once that evidence has been presented, the employer will have the opportunity to rebut the amount of damages and/or the nexus between the financial harm and the employer’s conduct.[5]
The Board acknowledges the financial harms that affected employees may experience as a result of improper suspension or termination from work and their benefits. Late fees on credit cards and loans, missed payments on car notes, rent, or mortgages, and medical costs accrued in the interim are all costs that have previously been burdened by the victims of unfair labor practices. This change of precedent will serve to rectify those harms.
Dissenting members of the Board argue that ascertaining direct and foreseeable financial harms will unnecessarily burden the system and cause delays in handing down orders and decisions. The majority counters this argument by discussing a myriad of previous decisions where damages for “direct” and “foreseeable” costs to make the petitioner’s whole were specific and easily ascertainable.[6] Moreover, while the majority acknowledges the challenges presented, they write: “Simplicity of administration will not be given priority when balanced against our overarching duty to make employees whole for violations of the Act.”[7]
[1] Thryv, Inc., 372 NLRB No. 22 (2022).
[2] Id. at 1.
[3] Id. at 13.
[4] Id. at 12.
[5] Id.
[6] See Id. at 7-8.
[7] Id. at 11.
