NLRB Invites Briefs Regarding Consequential Damages Remedy for Employees

In a notice issued today in Thryv, Inc. 371 NLRB No. 37 (2021), the National Labor Relations Board invited parties and amici to submit briefs addressing whether the Board should expand its traditional make-whole remedy for employees who are discharged, laid off, or otherwise discriminated against to more fully account for their actual economic losses.  The Board will consider whether to establish a practice of awarding a fuller accounting of “consequential damages,” in addition to loss of earnings and benefits, to employees who suffer unfair labor practices.

The Board’s traditional remedy for unlawful layoffs or terminations requires that employees be reinstated to their previous or substantially equivalent positions and be made whole for their loss of earnings and benefits, along with the search-for-work and interim employment expenses they incurred because of the unlawful conduct.

In today’s notice and invitation to file briefs, the Board asked for briefing on 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?

Chairman McFerran and Members Kaplan, Ring, Wilcox, and Prouty unanimously issued the notice and invitation.

Briefs not exceeding 20 pages in length shall be filed with the Board in Washington, D.C., on or before Monday, December 27, 2021. The parties (but not amici) may file responsive briefs on or before Tuesday, January 11, 2022, which shall not exceed 30 pages in length.  No other responsive briefs will be accepted. The parties and amici shall file briefs electronically by E-Filing on nlrb.gov. If assistance is needed in E-filing, please contact the Office of Executive Secretary at 202-273-1940.

Click here to read the notice and invitation to file briefs.