In September, National Labor Relations Board General Counsel Jennifer Abruzzo issued two memoranda seeking to implement more severe penalties for unfair labor practice violations. These memos appear to move forward on President Biden’s indication that he would be the “strongest labor president you have ever had.” The memos are a warning to employers that NLRB enforcement actions are likely to rise and come with harsher penalties than in the past.
Abruzzo has instructed NLRB regional offices to seek expanded remedies in unfair labor practice litigation and settlement negotiations.
The first memo told regional offices to seek the following more aggressive remedies for certain violations of the National Labor Relations Act:
- Unlawful failure to bargain: The memo includes remedies such as setting a bargaining schedule and status and progress reports to the NLRB, reimbursement of the other party’s collective-bargaining expenses, reinstating unlawfully withdrawn proposals, and other broad cease-and-desist orders. The memo goes on to say that an award for money damages to the employee might be based on what the employer would have agreed to, assuming it had met its bargaining obligations.
- Unlawful terminations: The memo instructs regional offices to seek compensation for consequential damages, front pay, and liquidated backpay. For an undocumented worker, the memo advises that regions seek compensation for work performed under unlawfully imposed terms and under employer sponsorship of work authorizations.
- Unlawful conduct during an organizing drive: The memo provides for the following remedies for unlawful conduct during an organizing drive and notes that there are other possible remedies as well.
- Reimbursing the union’s organizational costs.
- Mandating that a principal of the employer or a Board agent read the “Notice to Employees and Explanation of Rights” to employees.
- Making it easier for employees to join a union by requiring employers to provide their workers’ contact information, and by giving the union time to address employees during company meetings and reasonable access to all places where notices are typically posted.
- Publishing union notices in newspapers and other places paid for by the employer.
- Offering NLRA trainings for managers and supervisors.
Second memo: settlement negotiations
The second memo issued Abruzzo discusses remedies related to settlement negotiations.
It advises the regional offices to seek the following remedies:
- Non-backpay compensation for unlawfully fired employees including: compensation for financial losses from liquidating a savings or investment account to cover living expenses; penalties incurred by prematurely withdrawing money from a retirement account to cover living expenses; loss of a home or a car due to inability to afford mortgage or loan payments; harm caused to an employee’s credit rating following firing; interest or late fees on credit cards for charges incurred to cover living expenses; fees and expenses required to obtain or renew a clearance, certification, or license that was denied or lost; the cost of obtaining comparable health insurance coverage or paying other medical expenses incurred due to the loss of coverage; and moving expenses.
- Front pay in cases when the employee doesn’t want to pursue reinstatement.
- Incorporating default language into settlement agreements.
- Security provisions such as confessions of judgment or promissory notes.
- Sponsorship of work authorizations for undocumented workers.
- Admission clauses for repeat violators.
- Letters of apology.
- Notices to employees.