NLRB expands potential recovery in unfair labor practice cases

The National Labor Relation Act (NLRA) permits the National Labor Relations Board (NLRB) to award damages to employees that put them in the financial position they would have been in if no violation had occurred. This is called a “make-whole” relief. A recent Board decision expanded the make-whole relief available to employees by finding it includes all “direct and foreseeable pecuniary harms” employees suffer because of unfair labor practices.

Make-whole relief will thrive under new standard

In Thryv, Inc., the Board ruled that the employer committed unfair labor practices when it eliminated a department, laid off employees, and provided severance packages without providing notice and opportunity to bargain about the decision to eliminate the work.

Not only was reinstatement of the employees ordered, as well as back pay, but the Board also ordered the employer to compensate the employees “for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful layoff.”

In its holding, the NLRB made clear that the inclusion of “direct or foreseeable pecuniary harms” resulting from unfair labor practices will be incorporated into its standard make-whole order going forward. It reasoned this update to its standard make-whole relief is necessary because “rectifying the harms actually incurred by the victims of unfair labor practices and restoring them to where they would have been but for the unlawful conduct” more fully effectuates the purposes of the NLRA.