(NLRB) Board Rules Remedies Must Compensate Employees for All Direct and Foreseeable Financial Harms

December 13, 2022

In a decision issued today in Thryv, Inc., the Board clarified its make-whole remedy to expressly ensure that workers who are victims of labor law violations are compensated for all “direct or foreseeable pecuniary harm” suffered as a result of those unfair labor practices. This decision follows the Board’s Notice and Invitation to File Briefs asking parties to weigh in on whether the Board should modify its make-whole remedy.

The decision explains that, in addition to the loss of earnings and benefits, victims of unfair labor practices may incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. The Board determined that compensation for those losses should be part of the standard, make-whole remedy for labor law violations.

The Board explained that the General Counsel will be required to present evidence in the compliance proceeding proving the amount of the financial harm, that it was direct or foreseeable, and that it was due to the unfair labor practice. The respondent employer or union would then have the opportunity to rebut that evidence.

“Employees are not made whole until they are fully compensated for financial harms that they suffered as a result of unlawful conduct,” said NLRB Chairman Lauren McFerran. “The Board clearly has the authority to comprehensively address the effects of unfair labor practices. By standardizing the Board’s make-whole relief to fully include the direct or foreseeable financial harms suffered by affected employees we will better serve the important goals of the National Labor Relations Act.”

This clarification to the Board’s remedy will apply in every case in which the Board’s standard remedy would include make-whole relief for employees. The Board will apply this remedy retroactively to all cases currently pending.

Members Wilcox and Prouty joined Chairman McFerran in issuing the decision. Members Ring and Kaplan dissented.