September 15, 2021

Building upon a memorandum issued on September 8 regarding addressing unlawful conduct under the National Labor Relations Act, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo today issued a memorandum to all NLRB Field offices, directing them to seek settlement agreements that provide complete relief to charging parties and victims of unfair labor practices. This new memo provides examples of remedies that should be sought during settlement agreements and encourages NLRB Regions to expound upon them in appropriate cases. 

Specifically, the memo reflects that monetary remedies consisting of backpay and lost benefits often fail to truly make whole victims of an unfair labor practice, and thus, Regions are to seek compensation for any and all damages, direct and consequential, attributable to the unfair labor practice at issue. It provides some examples related to compensating discharged employees, such as costs associated with: (1) health insurance coverage; (2) medical, legal or moving expenses; (3) detrimental effects to credit ratings; (4) liquidating a bank account to cover living expenses; and (5) training or coursework required to obtain or renew a security clearance, certification, or license. 

Abruzzo further advises Regions to seek no less than 100 percent of the backpay and benefits owed and all compensation for any consequential damages, as well as front pay if an employee voluntary waives reinstatement. In cases where an employer’s unfair labor practice caused the loss of an employee’s work authorization, Regions are advised to seek a settlement agreement requiring the employer to sponsor the work authorization of the affected employee and reimburse the employee for any associated fees and costs. 

Finally, Regions are directed to also return to the practice of incorporating default language in settlement agreements, which will ensure prompt relief to those harmed and a conservation of NLRB resources. The memo also advises Regions to strongly consider the inclusion of admissions clauses for repeat violators.

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