New NLRB Ruling Expanding Remedy Will Likely Lead to More Litigation

Based on a recent ruling by the National Labor Relations Board in an unfair labor practice case, employers should prepare to show that pecuniary harm would have occurred in the absence of an unfair labor practice or that harm was not foreseeable at the time of the unfair labor practice. The absence of such proof may lead to additional damages at the employer’s expense.

In a 3-2 decision resulting from Thryv, Inc., 372 NLRB No. 22, the NLRB increased compensation remedies for employees if they are the victims of an unfair labor practice. Where employee damages were previously limited to back pay, employees can now recover “specified defined costs” for damages that are directly caused by the unfair labor practice or were foreseeable at the time of the unfair labor practice and incurred as a result of the unfair labor practice.

Possible examples of these directly caused or foreseeable at the time of the unfair labor practice include certain medical expenses and credit card debt. However, as the Thryv decision did not explicitly detail the types of financial losses an employee may recover under the standard, attorneys on both sides of the labor bar agree the decision will lead to significant follow-up litigation as parties map the boundaries of the new holding.

For employees hoping to recover under the expanded remedy, they must show that the pecuniary harm was either (a) directly caused by the unfair labor practice; or (b) foreseeable at the time of the unfair labor practice and was incurred as a result of the unfair labor practice. However, employers do have the ability to challenge the alleged damages. Employers have the burden to show that the pecuniary harm would have occurred even in the absence of the unfair labor practice, and or that the harm was not foreseeable at the time of the unfair labor practice.