New NLRB Decision Could Increase Employer Penalties

On December 13, the National Labor Relations Board (NLRB) issued a decision in Thryv, Inc., a case dealing with consequential remedies for workers.

In its decision, the NLRB opted to expand the “make-whole remedies” available to workers who have been fired or disciplined in violation of the National Labor Relations Act (NLRA). The ruling comes despite the fact that the NLRA does not provide the NLRB with authority to award consequential damages.

Regardless, remedies can now include “all direct or foreseeable pecuniary harms” that stem from the illegal discipline, including the medical bills or even credit card debt that a worker accrued after being fired in violation of the NLRA. According to the law firm Littler,  in its decision the NLRB made clear that this remedy is not to be reserved for “the most egregious cases” and will apply to all cases in which make-whole relief is at issue.

The remedy also will apply retroactively to any pending cases.

Littler’s experts said, “The expansion of the make-whole remedy will likely lead to major economic penalties for employers [since] employees will have the ability to point to evidence of pecuniary harm via ‘receipts, invoices, medical bills, and credit card and other financial statements.’”

The Coalition for a Democratic Workplace, which MSCI is a member of, opposed the expanded definition of make-whole remedies and had filed an amicus brief in the case. The coalition also issued a statement criticizing decision after it was released.

As the CDW explained in its brief to the court, “[T]he introduction of consequential damages, and the resultant need to prove the causation and reasonable foreseeability of such damages, will increase and prolong litigation” and “efforts to recover such damages in the course of trying to settle claims will result in a failure of settlement when respondents have no opportunity to test the propriety of such damages through contested proceedings.”