Published on: September 10, 2021
Authors: Gregory Hoff
Topics: Employment LawIn a continuation of an aggressive pro-union agenda, NLRB General Counsel Jennifer Abruzzo issued a new memo calling for additional penalties to be imposed on employers in unlawful termination cases.
Employee remedies under the National Labor Relations Act are typically limited to back pay and job reinstatement. In her new memo, however, General Counsel Abruzzo advised regional officials—those in charge of initially bringing cases forward—to seek consequential damages, which could potentially cover any economic costs incurred by the employee as a result of an unlawful termination by their employer. For example, an employer could be on the hook for an employee’s health care costs paid out of pocket because they lost health insurance as a result of the unlawful termination.
General Counsel Abruzzo calls for additional consequences imposed on employers in union organizing contexts as well. According to the memo, in cases involving unlawful conduct committed during a union organizing drive, regional officials should seek remedies ranging from requiring employers to provide unions access to their private property, to providing employee contact information, to reimbursement of all organizational costs. The memo also highlighted additional remedies to be sought in cases involving an employer’s failure to bargain with a union.
The emphasis on expanding available remedies comes on the heels of General Counsel Abruzzo’s first memo, which envisioned overturning more than 40 Trump-era Board decisions as part of a new, aggressive approach to NLRA enforcement. Most notably, that memo signaled a desire to revive Joy Silk bargaining orders, through which employers could be required to recognize and bargain with unions on the basis of card check authorization alone.
Outlook: If the memo is carried through to fruition, employers could be on the hook for substantial costs in addition to traditional remedies under the NLRA. General Counsel Abruzzo’s call for expanded remedies imposed on employers provides yet another example of the new NRLB’s aggressive pro-union agenda and the uphill battle employers will face at the Board for the next few years.