Employers May Soon Face Tougher Sanctions for NLRA Violations

Author: Robert S. Teachout, XpertHR Legal Editor

September 20, 2021

Employers charged with violating the National Labor Relations Act (NLRA) may soon face greater penalties in both settlement agreements and board rulings, following two memos issued by National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo. The memos call on regional offices to take actions to impose tough "new and alternative remedies" for violations of the NLRA in settlements, and to include requests for such remedies in cases sent to the Board.

The memos come in the wake of a call by NLRB Chair Lauren McFerran for the labor board to consider remedies with substantial consequences, following a recent NLRB ruling regarding a unilateral change to workers' health insurance. Many employees ended up owing thousands of dollars in additional medical bills.

McFerran said the NLRB should consider remedies that would require employers to truly reimburse employees for all losses "suffered as a direct and foreseeable result of an employer's unfair labor practice." Republican Member John Ring agreed, saying there may be cases "where the employer's egregious violations so harm employees that they may not be fully remedied by the board's traditional make-whole awards."

In the first memo, Abruzzo advocates for severe penalties against employers found to have violated the NLRA and calls for such "new make-whole" remedies to become the norm. The memo instructs regional officers to implement such remedies in cases involving issues such as:

  • Unlawful firings;
  • Unlawful conduct during an organizing campaign; and
  • Unlawful failure to bargain.

The second memo, issued a week later, instructs regional officers to implement the "new and alternative" remedies in settlements, noting that settlements offer a greater opportunity to expand the use of these remedies. This means that employers may see increased penalties for NLRA violations almost immediately.

Remedies called for in the memo include:

  • Costs of any and all damages, direct and consequential (e.g., legal expenses, costs of replacing insurance, moving costs if an employee must relocate, etc.);
  • Front pay for employees who voluntarily waive reinstatement;
  • Accepting no less than 100% of all damages owed (currently the NLRB will settle for 80 percent);
  • Apology letters from employers to harmed employees;
  • Obtaining outplacement services for employees waiving reinstatement; and
  • Requiring employers to sponsor work authorizations for immigrant employees if the unfair labor practice caused the loss of an employee's work authorization.