Under the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB or Board) is empowered to reinstate employees and award them back pay if their termination violates the NLRA. The overall purpose of this power is to enable the Board to make employees whole when they have been discharged in violation of the NLRA.
Historically, the Board has permitted search-for-work expenses as part of any “make whole” remedy, but only to the extent that those expenses did not exceed any earnings the employee made after termination. Recently, however, NLRB General Counsel Richard Griffin issued a Memorandum to all NLRB regional offices instructing them to include, as part of any make-whole-remedy demand, reimbursement for job-search expenses the employee may have incurred after unlawful termination. Griffin went on to instruct all NLRB regional offices to demand in each unfair labor practice complaint that search-for-work-related expenses be included as part of the employee’s damages, even if those expenses exceed interim earnings.
For employers, this means that liability for unfair labor practices will almost certainly increase, as will the cost of settlement. This, in turn, will increase the cost of litigation before the Board. This new development should prompt employers to consider potential unfair labor practice liability before terminating a union employee or an employee engaged in pro-union activities.