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Did you know the National Labor Relations Board (NLRB) has authority over more than just unionized employers? Its authority extends to all employers subject to the National Labor Relations Act, which is most private employers. Employers subject to the Act risk being charged with an unfair labor practice when addressing protected activity or dealing with unionization drives. Therefore, it is wise to be educated on the rules and regulations around concerted activity, even if you are not a unionized workplace. Employers Council has publications, including our whitepaper Protected Concerted Activity, that offer further explanation.

A new decision by the NLRB has changed the law and made it crucial for employers to be aware of the potential pitfalls surrounding the protected concerted activity of their employees. Employers that violate federal labor law now risk having to pay workers for the consequences of their unfair labor practices. The NLRB ruled 3-2 on December 13, 2022, that software company Thryv Inc. violated labor law by laying off workers without first bargaining with their union. However, in addition to traditional “make-whole” remedies, like back pay and reinstatement, the Board set new precedent by ordering the employer to pay consequential damages. Consequential damages typically include all direct or foreseeable pecuniary harms that result from a respondent’s wrongdoing. They could include things like medical expenses incurred out of pocket because of lost health insurance, reimbursement for fees for payments, or even interest payments on any loans that a worker took out to cover living expenses because of an unlawful termination.

While the ability of the NLRB to levy damages is still less than in many courts, its addition of consequential damages has just raised the stakes for all unfair labor practice charges. Employers will be able to challenge the amount of damages and whether they were direct or foreseeable or would have occurred regardless of the unlawful conduct. The Board still lacks the power to levy monetary fines or impose punitive damages, but it now has significantly more enforcement leverage over alleged violators.

If you have any questions, please contact the Employers Council Labor Relations Department at LR@employerscouncil.org.