New Decision Gives NLRB Real Teeth to Make Employees Fired for Protected Concerted Activity Whole

Summary: This article gives a brief overview of the NRLB’s new Thryv, Inc., decision, and its implications for the landscape of labor and employment law.

The National Labor Relations Act is an often-overlooked part of employment law.  The National Labor Relations Board (the agency in charge of administering the NLRA) does far more than govern company-union relations (i.e., labor law).  It also protects employees, regardless of union membership, against retaliation for engaging in protected concerted activity regarding the terms and conditions of their employment.  This means, for instance, that two or more employees who talk to each other or management about some important workplace issue like wages, safety, or company policies may have legal protection if the company seeks to punish them for “rocking the boat.” 

Retaliation like that is a type of “unfair labor practice,” and the NLRB is empowered to make workers “whole” in such situations.  That is, to put them in the position they would have been in but for the retaliation, restoring the “status quo.”  In the past, for employees that was often limited to backpay (that is, lost wages if they are fired or demoted) and/or job reinstatement.  While those are certainly major parts of making someone whole, they may not account for every way in which retaliation can harm someone.  For instance, if you were fired in retaliation for concerted activity and had to relocate across the country for a new job, those moving expenses might not have been covered even if you proved retaliation happened. 

On December 13, 2022, the NLRB issued a decision in the Thryv, Inc., case, Nos. 20–CA–250250 and 20–CA–251105.  While that was a labor case about how a company was allowed to conduct a layoff and whether it could withhold information from the union about it, how it addressed damages has important implications beyond that situation.  In the end, the decision held that someone subjected to an unfair labor practice should be compensated for any “direct or foreseeable pecuniary harms resulting from [it].”  Those could include things such as foreseeable increases in insurance rates, debt, medical bills, or moving costs.  This brings the NLRB’s authority closer to the damages that can be awarded under other civil rights statutes, like the Civil Rights Act of 1964.  The decision did not go as far as endorsing punitive or mental anguish damages like under Title VII, however.     

Perhaps just as importantly, the decision makes it clear that full make-whole damages like this should always be awarded if proven, not just in “extraordinary circumstances.”  Although a lot of coverage for this decision calls these “consequential damages” (the company, Thryv, called them that while trying to claim they were unconstitutional), the decision is actually careful to note that that is not what it is talking about. That is a separate concept of damages found in tort law (personal injury and the like).  

This decision is an important step toward giving employees a much better shake at being made whole if their employer violates the NLRA.  At minimum, this will hopefully serve as a stronger incentive for employers to comply with the law, since if they might be responsible for things like medical bills, that increases their responsibility toward their employees.  Too often now employers can write off legal penalties as just a cost of doing business.  While the NLRB has an unfortunate tendency to see-saw back and forth on its decisions as the political winds change, hopefully a commonsense rule like in Thryv will remain on the books.

The decision is also an important step in putting workers and unions on a more equal footing with employers, who have often been permitted to pursue broad damages like lost profits if unions violate the NLRA.  While employees often find that tort claims against their employers are preempted by law, they have little comparable protection from employers.  Some greater authority to award damages to unions and employees is especially important now, when it appears the U.S. Supreme Court may be set to expand employers’ abilities to sue unions in the upcoming Glacier Northwest, Inc. v. International Brotherhood of Teamsters decision.    

If you believe you have been subjected to retaliation for your protected concerted activity, you should talk to an employment attorney like those at Rob Wiley, P.C. 

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