On November 10, 2021, the National Labor Relations Board announced that it is seeking public input to address whether the Board should award consequential damages to make employees whole for economic losses and under what circumstances.  See Thyrv, Inc. 371 NLRB No. 37 (2021).

The Board’s traditional remedy for unlawful layoffs or terminations requires that these employees be (i) reinstated to their previous position or a substantially equivalent position, and (ii) made whole for any loss of earnings and other benefits incurred as a result of the unlawful layoff or termination.  As part of its “make-whole” relief, the Board has awarded two remedies that may be characterized as consequential damages: (1) reasonable search-for-work expenses, and (2) interim employment expenses.

Even though no party in the litigation asked for the issue to be addressed, the Board utilized its broad discretionary authority to invite the parties and interested amici to brief the following questions:

1. Should the Board modify its traditional make-whole remedy in all pending and future cases to include relief for consequential damages, where these damages are a direct and foreseeable result of a respondent’s unfair labor practice?
2. Alternatively, should the make-whole remedy include relief for consequential damages only upon findings of egregious violations by a respondent?
3. If consequential damages are to be included in make-whole relief, how should they be proved, and what would be required to demonstrate that they are a direct and foreseeable result of an employer’s unfair labor practice?
4. What considerations support making the proposed change to the Board’s traditional make-whole remedies?
5. What considerations support retaining the Board’s traditional exclusion of consequential damages from its make-whole remedies?

Interested amici may e-file briefs not exceeding 20 pages in length to the Board by Monday, December 27, 2021.

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