NLRB Advocate General Reports Much Tighter Enforcement Measures Against Employers | Fox Rothschild LLP

Last month, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued not one, but two memoranda directing regional offices to seek a very wide range of “remedies” against employers in cases of unfair labor practices. From a management perspective, the actions mandated by these memoranda appear to be more punitive than corrective. Each of these memoranda is remarkable in itself, but taken together they portend a major crackdown on employers suspected of violating national labor relations law.

With little relief in sight, the best way for employers is to bite the bullet and invest the time and resources necessary to review their work management policies, practices and procedures to ensure legal compliance and avoid the increasingly sharp bite of the NLRB.

This alert revises GC 21-07, released September 15, 2021. We will be reviewing GC-21-06, titled “Finding Complete Solutions,” in a future alert.

“Full Remedies in Settlement Agreements”

A significant percentage of all cases in which the NLRB regional offices find “the merits” of the allegations contained in the charge are resolved by settlement rather than trial before an administrative law judge. In GC 21-07, Abruzzo asks regional offices to seek a variety of “new and alternative” remedies in the context of voluntary settlement agreements. Simply put, the price of the settlement is increasing for employers – and this increase is unlikely to be “transient.”

More severe penalties in cases of exit

For example, in cases involving an unlawfully dismissed employee, it is the policy of the Board to require the employer to “fix” the employee for their losses. For decades, in most cases, “full” relief was limited to reinstatement and back pay, plus interest. However, Abruzzo has asked regional offices that grant full compensation should include “consequential damages” to compensate employees for other economic losses suffered as a direct and foreseeable consequence of their dismissal, such as interest or late fees. incurred by an illegally terminated employee on credit cards they covered living expenses; penalties incurred by the employee for having to withdraw money prematurely from a retirement account to cover living expenses and / or loss of a home or car due to the inability of the employee to meet loan repayments.

Abruzzo offered other examples where “appropriate compensation would be appropriate”, including:

• Compensation for damage to an employee’s credit rating as a result of unlawful termination
• Compensation for financial losses suffered by an employee for having had to liquidate a personal savings account or an investment account to cover his living expenses.

To call these remedies “new” or revolutionary is an understatement – no other generally applicable labor law provides for such remedies. In addition, many of these remedies would be difficult to administer in the context of a settlement agreement. For example, with respect to compensating employees for “financial losses” associated with the liquidation of an investment account, would the employer be obligated to compensate the employee for lost investment gains? ? If so, over what period?

Perhaps most infuriating for employers, Abruzzo also states that when employers make an unconditional offer of reinstatement to an illegally dismissed employee, they should be required to write a letter of apology written to the employee. Abruzzo argues that this sweeping new requirement “can help defuse lingering tensions between employee and employer during the reinstatement process”. In fact, forcing employers to issue a forced “apology” may be more likely to deter employers from resolving the matter.

Changes to the content of the settlement agreement

Abruzzo has ordered that in most cases settlement agreements should include a ‘default language’, which allows the regional office to seek and obtain summary judgment against an employer who does not abide by the terms of an agreement settlement. This marks a return to a practice of the Obama administration that was rescinded in December 2017 by former NLRB general counsel Peter B. Robb. At the same time, Abruzzo indicates that the language of “no admissions” should normally not be included in settlement agreements and, in addition, that regions should seek the inclusion of “admissions” clauses for violators. repeat offenders. This goes directly against the general practice in most regulations, in which the alleged offender is allowed to deny wrongdoing in exchange for redress to the victim (s) for his alleged misconduct.

Wider dissemination of employee notifications

An indispensable part of any Board regulation is the posting of a notice to employees informing them of their rights under the Act, of how their employer [allegedly] violated these rights, assurances by the employer that it will not violate these rights and a description of any affirmative action taken by the employer to remedy the violation, for example, reinstatement of a dismissed employee. Historically, the Commission has required the employer to physically post the notice in the workplace where employee notices are ordinarily posted. Abruzzo observed that requiring employers to disseminate such notices to employees via text and email will increase employee awareness of the notice and their rights under the law. Pushing the envelope further, Abruzzo went on to suggest that in some cases employers should be required to post the notice on their social media websites. Finally, Abruzzo wrote that in some cases settlement agreements should include “visit” clauses allowing Commission officers to “report” to the workplace to ensure notices are posted as needed. .

Conclusion

It was widely observed that employers would face a much more difficult enforcement environment under the Biden administration, particularly with the appointment of a general counsel who was recently affiliated with a powerful union (the Communications Workers of America) . It is no coincidence that the major political initiatives announced so far by Abruzzo aim to strengthen the application of laws against employer unfair labor practices, without any mention of union ULP. As noted at the outset, now is the time for employers to review their work management policies, practices and procedures to ensure legal compliance in the face of a more aggressive application of the NLRB.

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