On September 8, 2021, General Counsel for the National Labor Relations Board issued Memorandum GC 21-06 ("Memorandum") that directs the NLRB Regional Offices to "request from the Board the full panoply of remedies available" when determining compensation to employees and unions subjected to unfair labor practices ("ULPs") under the National Labor Relations Act. For aggrieved employees who are separated from employment because of the employer's ULP, this directive represents a stern departure from current NLRB remedies, which usually are limited to back pay for the aggrieved employee.
Specifically, the Memorandum directs that NLRB Regional Offices "avail themselves of all remedial tools" to make separated employees whole. In so doing, the Memorandum instructs NLRB Regional Offices to "seek compensation for consequential damages, front pay [in lieu of reinstatement when appropriate], and liquidated back pay." The Memorandum includes examples of additional remedies, such as health care expenses caused by a termination of health insurance, compensation for credit card late fees or compensation for the loss of a home or a vehicle caused by the employer's action.
This Memorandum further demonstrates the NLRB's more punitive approach towards employers under the Biden Administration. Although the Memorandum serves as guidance only, we fully expect NLRB Regional Offices to follow the General Counsel's directive by vigorously pursuing such remedies.
Employers should consider the heightened economic risk that ULPs pose going forward. Businesses facing a possible ULP charge may want to consult with counsel and take this increased risk into account when considering options.
Click here to read the full Memorandum (PDF download).
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