On December 13, 2022, the National Labor Relations Board (NLRB) issued a precedential decision in Thryv, Inc. expanding the possible damages for unfair labor practices (ULPs) to include "consequential damages." The NLRB held that the employer in that case violated Sections 8(a)(5) and (1) of the National Labor Relations Act (NLRA) when it failed to respond to the union's information requests and did not bargain in good faith over layoffs. Upon finding that the employer violated the NLRA, the Board analyzed how exactly its "make-whole" remedy should be applied.
The Board found it necessary to clarify the previous standards for being made whole, ultimately holding that the remedies available to employees subjected to ULPs should be expanded. The Board explained that since the NLRA's purpose is for employees to be "made fully whole," in addition to loss of earnings and benefits, an employer should be liable for all directly related or foreseeable pecuniary harms an employee suffers as a result of a ULP. The Board held that damages for a ULP could include out-of-pocket medical expenses, credit card debt, and even damages related to an employee being unable to make car or mortgage payments and suffering a repossession or foreclosure. Rather than the specific type of expense, the critical inquiry under the NLRB's new standard is whether those expenses are proven to be a direct or foreseeable result of the ULP.
This broadened interpretation of the NLRA's make-whole remedy opens employers, and unions, to increased risk associated with ULPs. Now more than ever it is critical for employers to stay up-to-date on the NLRB's current interpretations of the law to ensure compliance in the workplace.
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