Over the last few years, the NLRB has provided no shortage of topics for us to discuss, because it has made no secret of its aggressive agenda to expand employee protections under the National Labor Relations Act (NLRA), making rules and
Some of these actions have included
Employers may now be responsible for additional costs related to terminated employees’ job searches. In yet
The NLRB’s departure from more than three quarters of a century’s rulings centered on a goal of providing a “make-whole” remedy for unlawfully terminated workers.
These workers have a duty to mitigate their earnings losses in the form of job searching efforts. Until now, when unlawfully terminated employees sought reimbursement for interim work and job search expenses, that amount would be offset from whatever the employee’s interim earnings were, and in simple terms, these expenses could not exceed the employee’s interim earnings. Additionally, any payments the employee was awarded have traditionally been lumped into taxable net back pay, even though search-for-work and interim employment expenses are non-wage components of back pay.
Under the NLRB’s reinvented rule, search-for-work and interim work expenses will now be treated independently and not be limited by any interim earnings. In other words, unlawfully terminated employees will be entitled to the full costs of these expenses, and employers will be liable for them.
Of course, these costs are still subject to proving the expenses were both reasonable and actually incurred. That all said, it remains unclear what effect this decision will have on future litigation. The NLRB even noted in its decision that “Board proceedings have rarely involved litigation over search-for-work and interim employment expenses.” Of course, what the NLRB declined to observe is that parties rarely litigate issues that have been settled for 81 years.
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