The National Labor Relations Board (NLRB) has once again expanded existing precedent. Clarifying its make-whole remedy, the NLRB finds that victims of labor law violations are to be compensated for all “direct or foreseeable pecuniary harm” suffered as a result of unfair labor practices. The Board’s latest decision in Thryv, Inc. follows an NLRB Notice and Invitation to File Briefs asking parties to weigh in on whether the Board should modify its make-whole remedy. The National Labor Relations Board is tasked with enforcing laws protecting union and non-union employees’ rights to engage in protected activity under the National Labor Relations Act (NLRA).  

In expanding its make-whole remedy, the Board found that in addition to the loss of earnings and benefits, victims of unfair labor practices may incur significant financial (e.g., out-of-pocket medical expenses, credit card debt) or other costs that are a direct or foreseeable result of the alleged unfair labor practices. Determining that compensation for such losses should be part of its make-whole remedy for labor law violations, the Board explained that the General Counsel will be required to present rebuttable evidence (in the compliance proceeding) proving the amount of direct or foreseeable financial harm, and that it was due to the unfair labor practice.  

Going forward, the Board will apply this expanded standard in every case in which the Board’s recommended remedy would include make-whole relief for employees. This decision will be applied retroactively. 

Section 7 of the NLRA prohibits an employer from engaging in activities that may “interfere with, restrain, or coerce employees” in the exercise of their Section 7 rights. Under Section 7, employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity.  Whether your workplace is unionized or non-unionized, keep these prohibitions in mind: 

An employer may not:

• Promise employees benefits if they reject the union.
• Interview employees to prepare your defense in an unfair labor practice case, unless you provide certain assurances:
  • Communicating to the employee the purpose of the questioning. assuring them against reprisals and obtaining voluntary participation.
  • Questioning will be free from employer hostility to union organization and not itself be coercive.
  • Questioning will not go beyond what is needed to achieve its legitimate purpose.  

• Distribute, maintain, or enforce work rules/policies that reasonably tend to inhibit employees from exercising their rights under the NLRA (e.g., prohibitions against employees voluntarily sharing or discussing wages). 
• Create an impression in the workplace that you are spying on employees’ union activities. 
• Photograph or videotape employees engaged in protected activities, including union activities.