NLRB Potential Remedies: Sign of Things to Come?

Over the past few years, a labor-friendly National Labor Relations Board (NLRB or “the Board”) has expanded the scope of the NLRB’s jurisdictional reach in multiple ways, notably in the area of potential remedies. Indeed, in its 2022 decision, the NLRB ruled that the standard make-whole remedy should include consequential damages including but not limited to all “direct or foreseeable pecuniary harms” related to the underlying unfair labor practice violations. Since that 2022 decision, the NLRB has sought a wide range of remedies under the umbrella of consequential damages which are well beyond what has been the typical remedy for violations, namely backpay and reinstatement. However, in Thryv, the NLRB ruled that true “make whole” relief needed to include more than just backpay and include such things as relocation costs, cost of living adjustments, mileage reimbursement, interest, and excess taxes.

However, on December 27, 2024, the U.S. Third Circuit Court of Appeals gave employers a year-end gift. In , the court ruled that the NLRB exceeded its authority under the National Labor Relations Act (NRLA) when it held that two individuals were entitled to “reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings.” The Third Circuit found that the Board’s remedial authority was limited to equitable relief only. This is certainly welcome news for employers who have pending unfair labor practice cases before one of the NLRB’s regions throughout the United States.

In light of the fact that the Republican Party will now be in control of all three branches of the federal government in the coming weeks, a dramatic sea change within the NLRB is imminent. Upon being sworn in on January 20, 2021, one of the first actions President Joe Biden took as president was to fire the then-general counsel of the NLRB. It will be interesting to see what newly sworn in President Donald Trump does with current General Counsel Jennifer Abruzzo, who has worked during her term to expand the protections afforded to workers and . As a result, it is very likely that the future NLRB will seek remedies which more closely resemble typical backpay awards as well as other changes to interpretation of the NLRA. Employers need to stay attentive.

Disclaimer

This blog is made available by �鶹��ý (“�鶹��ý” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of �鶹��ý, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with �鶹��ý through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to �鶹��ý through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. �鶹��ý makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. �鶹��ý expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall �鶹��ý or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.