Updated: Dec 29, 2022
California employment lawyers might be interested in the recent holding of an NLRB case, Thryv, Inc., that explicitly authorizes all “make-whole” remedies in a finding against an employer. The recent holding could provide employee-side attorneys with another weapon to use against employers.
Traditionally, the National Labor Relations Board (NLRB), which protects employees from anti-union and union-busting conduct by employers, has restricted remedies to back pay, front pay, and reinstatement. The NLRB is not authorized to grant tort or contract remedies; limited remedies that the NLRB has been able to issue have made pursuing NLRB cases generally not profitable for employee-side attorneys working on a contingency fee basis.
In Thryv, Inc., as part of a 51-page opinion the NLRB Board ruled that employers will be held financially responsible for all direct or foreseeable pecuniary harms suffered as a result of the employer’s unfair labor practices. Thryv, Inc. was ordered to within fourteen days of the Order, offer reinstatement to all affected employees, and to make the affected employees whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful layoff. Thryv, Inc. was additionally ordered to compensate the affected employees for any adverse tax consequences of receiving lump-sum backpay awards.
The Board noted the extensive list of remedies the NLRB has at its disposal, including an award of all expenses incurred by a terminated employee while looking for replacement employment, compound interest, late fees on credit cards caused by the inability to pay due to loss of wages, penalties incurred by employees who had to undertake early retirement withdrawals to cover living expenses, and costs to recover or replace repossessed property.
The case is an example of why California is considered one of the most employee-friendly states in the country with continually expanding protections and remedies. The link to the decision is here: Thryv, Inc. | National Labor Relations Board (nlrb.gov)