December 13, 2022

The National Labor Relations Board (NLRB) announced a decision to clarify its make-whole remedy to expressly ensure that workers who are victims of labor law violations are compensated for all “direct or foreseeable pecuniary harms” suffered as a result of those unfair labor practices.

The decision explains that, in addition to the loss of earnings and benefits, victims of unfair labor practices may incur significant financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. The NLRB determined that compensation for those losses should be part of the standard, make-whole remedy for labor law violations. The Board explained that the General Counsel will be required to present evidence in the compliance proceeding proving the amount of the financial harm, that it was direct or foreseeable, and that it was due to the unfair labor practice. The respondent employer or union would then have the opportunity to rebut that evidence.

This clarification to the NLRB’s remedy will apply in every case in which the Board’s standard remedy would include make-whole relief for employees and the Board will apply this remedy retroactively to all cases currently pending.

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