The National Labor Relations Board has taken another step to expand employees’ and unions’ remedies for violations of federal labor law. On September 8, the Board’s General Counsel, Jennifer Abruzzo, issued a memo instructing Board officials to seek new and broader types of remedies in wrongful discharge cases and other situations.
As background, the remedies available for violations of the Act historically have differed from those available under other employment laws. For example, in wrongful discharge cases, the Board historically has not allowed employees to recover punitive damages, traditional liquidated damages, or certain types of consequential and compensatory damages (e.g., compensation for emotional distress or most types of financial loss beyond lost wages). Some argue that the Act authorizes the Board to grant these additional types of damages, but for decades the Board has declined to do so, under both Democrat and Republican administrations. This has caused many union and employee advocates to criticize the Board as insufficiently deterring and remedying violations. While the Board has authorized employees to recover lost wages and certain other relief, the available remedies for wrongful discharge cases are less expansive than those available under Title VII, the ADA, the FMLA, and most other employment laws.
General Counsel Abruzzo has signaled that she intends to expand the available remedies, and multiple members of the Board itself have signaled their agreement. In her latest memo, Abruzzo instructed Board regional officials to seek additional types of remedies in several types of cases. Most notably, in wrongful discharge cases, she instructed regional officials to seek compensation for consequential damages that an employee incurs due to being discharged, beyond the employee’s lost wages. This would enable a wrongfully discharged employee to recover, for example, healthcare expenses that she incurs because she lost her employer-provided health insurance, or fees or fines that she incurs because she cannot pay her rent or credit card bills.
Abruzzo also has signaled that she will seek to expand the Act’s remedial structure in other ways. For example, she has openly considered seeking orders that require employers to bargain with unions when a union has simply obtained authorization card signatures from a majority of employees (even if it has not prevailed in an election), which the Board has not done for over 50 years. She also intends to seek expanded remedies in other types of cases, such as by requiring employers to publish notices of violations in a broader range of formats (e.g., on social media and by text message) and impose stricter requirements on employers who fail to bargain with unions when required by law.
Most observers should not be surprised that the new Board administration intends to be more aggressive when addressing employers’ alleged or actual violations of the Act. Nevertheless, this latest announcement constitutes another reason for employers to follow developments under the Act, proceed diligently when dealing with employees and unions, and make sure they understand the current status of their legal obligations, which will continue to develop going forward.