An April 8, 2024, Memorandum issued by National Labor Relations Board (NLRB) General Counsel, Jennifer Abruzzo (General Counsel), advises regional offices to push the NLRB to pursue “the full panoply of remedies available to ensure that victims of unlawful conduct are made whole for losses suffered as a result of unfair labor practices.”

A key focus of the memo is the General Counsel’s expansive directive to ensure make-whole remedies are pursued on behalf of all employees, regardless of whether they are identified during an unfair labor practice investigation or not. Finding “mere rescission of an overboard, unlawfully promulgated, or unlawfully applied rule or contact term” not enough to expunge discipline imposed under such unlawful provisions and fails to make impacted employees whole, the General Counsel encourages the NLRB to undertake broader enforcement efforts. This includes seeking relief for any employee disciplined or subject to legal enforcement due to an unlawful work rule or contract term.

Of major concern is that the directive comes on the heels of several other expansions including the NLRB’s restrictive standard for analyzing employer work rules.

What Does It Mean?

Expanded enforcement efforts will put pressure on employers to justify disciplinary efforts. Employers will need to be able to demonstrate not only that the conduct in question violated an internal work rule, but that the work rule itself does not violate any National Labor Relations Act protected activities.

This new directive will also result in expanded investigation efforts as regional personnel look beyond the charging party and named employees to any individual potential impacted by the alleged unlawful labor practice. Subsequent findings will then dictate whether regional personnel push the NLRB for expanded enforcement efforts.

An internal audit of workplace rules and other employment agreements (e.g., confidentiality, arbitration, and severance agreements) will ensure employers rely on lawful rules/agreements and in turn lower the risk of actions that could run afoul of NLRB protections