January 18, 2022

Volume XII, Number 18

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NLRB Takes One Step Closer to Expanding The Possible Damages Awarded to Employees Fired in Violation of the Act

On November 10, 2021, the National Labor Relations Board announced that it is seeking public input to address whether the Board should award consequential damages to make employees whole for economic losses and under what circumstances.  See Thyrv, Inc. 371 NLRB No. 37 (2021).

The Board’s traditional remedy for unlawful layoffs or terminations requires that these employees be (i) reinstated to their previous position or a substantially equivalent position, and (ii) made whole for any loss of earnings and other benefits incurred as a result of the unlawful layoff or termination.  As part of its “make-whole” relief, the Board has awarded two remedies that may be characterized as consequential damages: (1) reasonable search-for-work expenses, and (2) interim employment expenses.

Even though no party in the litigation asked for the issue to be addressed, the Board utilized its broad discretionary authority to invite the parties and interested amici to brief the following questions:

  1. Should the Board modify its traditional make-whole remedy in all pending and future cases to include relief for consequential damages, where these damages are a direct and foreseeable result of a respondent’s unfair labor practice?

  2. Alternatively, should the make-whole remedy include relief for consequential damages only upon findings of egregious violations by a respondent?

  3. If consequential damages are to be included in make-whole relief, how should they be proved, and what would be required to demonstrate that they are a direct and foreseeable result of an employer’s unfair labor practice?

  4. What considerations support making the proposed change to the Board’s traditional make-whole remedies?

  5. What considerations support retaining the Board’s traditional exclusion of consequential damages from its make-whole remedies?

Interested amici may e-file briefs not exceeding 20 pages in length to the Board by Monday, December 27, 2021.

© 2022 Proskauer Rose LLP. National Law Review, Volume XI, Number 321
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About this Author

Mark Theodore, Employment Attorney, Proskauer Rose
Partner

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. 

Some highlights of his career include:

  • Successfully negotiated the first contract for a shipping agency during constant threat by union to shut down Port of Los Angeles

  • Successfully defended a major theme park when the NLRB sought bargaining order after the union...

310-284-5640
Joshua Fox Labor & Employment Attorney Proskauer Rose
Associate

Joshua Fox is an associate in the Labor & Employment Law Department and a member of the Labor-Management Relations Group. He represents a diverse range of clients, including professional sports leagues and teams, hotels, hospitals, and pipe line contractors, among many others, in collective bargaining, administration of their collective bargaining agreements, arbitrations and matters before the National Labor Relations Board.

In particular, Josh has extensive experience representing professional sports leagues, including Major League...

212.969.3507
Eric D. Novak Labor & Employment Proskauer Rose New Orleans, LA
Associate

Eric Novak is an associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group.

Eric received his J.D. from Tulane Law School, where he was a recipient of the Jackson-Ryan Pro Bono Advocate Award and a member of the American Inn of Court, Tulane Law Chapter. While in law school, he served as a judicial extern to the Honorable James L. Dennis at the United States Court of Appeals for the Fifth Circuit and the Honorable Sarah S. Vance and the Honorable Nannette Jolivette Brown, both at the United States District Court for the...

504.310.2072
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