Biden NLRB poised to expand remedies for unfair labor practice violations

When the National Labor Relations Board (NLRB) finds an employer’s unlawful action caused economic damage to employees, “make-whole” relief is the normal remedy, intended to restore aggrieved employees to the position they had before the employer’s unlawful action. Over the past 80 years, the NLRB has gradually expanded the scope of relief well beyond the traditional remedies of reinstatement and back pay with interest. The Board, however, has consistently declined to accept the broader concept of “consequential damages.”

Five separate pronouncements by the Biden NLRB and its General Counsel between September and November 2021 have taken this issue to a new level, all but assuring the Biden Board will embrace consequential damages as an appropriate remedy for proven violations of the National Labor Relations Act (NLRA).

Vorhees Care and Rehabilitation Center

On August 25, 2021, the NLRB issued its decision in The Vorhees Care and Rehabilitation Center. In that case, the employer’s unlawful unilateral change on health benefits issues left employees without medical coverage for six months, saddling them with thousands of dollars in medical bills. An employee who had emergency surgery had to pay hundreds of thousands of dollars in medical bills, and others had bills go to collections.