Blog by Thomas Jachemczyk, Junior Associate

On December 13, 2022, the National Labor Relations Board (NLRB) published a decision, Thryv, Inc., 372 NLRB No. 22 (2022), which has a significant impact on employer’s who are found to have infringed upon the rights of employee’s protected under the National Labor Relations Act.[1] Specifically, this decision substantially expands the financial penalties available that the Board may require from employers involved with unfair labor practices, to compensate these employees beyond the established make-whole remedies of reinstatement and back pay.[2] Some examples of now possible damages that could be awarded could include out-of-pocket medical expenses, late credit card fees and rent payments, missed mortgage payments, or even the loss of a home or car relating to missing payments due to the loss of income for being unfairly terminated.[3] Suffice to say, this decision provides the NLRB with broad discretion when determining compensation an employer is liable for when violating labor law and affecting an employee.

Comparatively, in 1996, the United Kingdom enacted the Employment Rights Act (ERA).[4] The ERA is a formal codification of existing law pertaining to employee rights within the United Kingdom.[5] Unlike the United States which has only recently expanded the available remedies for compensation, when the United Kingdom’s ERA passed legislation, it contained a few provisions addressing it.[6] The available remedies for an unfair dismissal include reinstatement or reengagement, a basic award, a compensatory award, and an additional award for non-compliance with an order for reinstatement or reengagement.[7] The most similar award to that of this new expansion decision is the compensatory award. The purpose of this award is to compensate an employee fully, but not award the employee a bonus compensation for being unfairly dismissed.^[8] The compensatory award does not utilize a prescribed formula.^[9] The ERA established the employment tribunal, which is tasked with determining whether there was a violation and what remedies are available.[10] Similar to the United States, the language used within the ERA provides the employment tribunal with broad discretion allowing them to determine what is “just and equitable.”[11]

In short summary, it is clear that the United States new decision shares qualities of the ERA. However, the ERA was enacted in 1996, meanwhile the new decision by the United States was published in December of 2022. As this published decision is very recent, it remains to be seen whether the impact will have a positive effect or a negative effect. However, it is clear the NLRB has tried to address the inadequacy of available remedies to workers whose rights have been violated by employers under the National Labor Relations Act and is now a little more comparable to that of the United Kingdom’s ERA.[12] The question remaining is whether the United States will continue to adopt labor law protections that are more similar to that of the United Kingdom.

[1] Brian J. Moore and S. Joseph Stephens III, New NLRB Opinion Means Employers on the Hook for Expanded Damages in Labor Violation Cases, The National Law Review (Dec. 20, 2022), https://www.natlawreview.com/article/new-nlrb-opinion-means-employers-hook-expanded-damages-labor-violation-cases.

[2] Kenneth A. Jenero, NLRB Expands Standard Remedies Available to Victims of Unfair Labor Practices, Holland and Knight Law, (Dec. 20, 2022), https://www.hklaw.com/en/insights/publications/2022/12/nlrb-expands-standard-remedies#:~:text=In%20Thryv%2C%20Inc.%2C%20the,of%20an%20unfair%20labor%20practice.

[3] New NLRB Decision Means Employers Will Have to Pay Up for Labor Violations, Fisher Phillips (Dec. 14, 2022), https://www.fisherphillips.com/en/news-insights/new-nlrb-decision-employers-pay-up-labor-violations.html.

[4] Employment Rights Act 1996, Employment Laws, https://employment.laws.com/employment-rights-act-1996 (last updated Dec. 22, 2019).

[5] Id.

[6] Practical Law Employment, Unfair dismissal: overview, Practical Law, https://uk.practicallaw.thomsonreuters.com/2-375-8159?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&ppcid=fd144d1327994e12a5ab585ca2e7f8cb [hereinafter Unfair dismissal: overview] (last visited Nov. 11, 2023).

[7] Practical Law Employment, Unfair dismissal: compensation and remedies, Practical Law, https://uk.practicallaw.thomsonreuters.com/5-386-1008?originationContext=document&transitionType=DocumentItem&contextData=(sc.Default)&ppcid=49315e10703646058b45c440cd300225#co_anchor_a215347 [hereinafter Unfair dismissal: compensation and remedies] (last visited Nov. 11, 2023).

[8] Innes Clark, Employment tribunal awards, Morton Fraser, (Mar. 31, 2023), https://www.morton-fraser.com/insights/employment-tribunal-awards.

[9] Id.

[10] Unfair dismissal: overview, supra note 6.

[11] Unfair dismissal: compensation and remedies, supra note 7.

[12] Legal Issues to Watch in 2023, Rutgers Law (Jan. 31, 2023), https://law.rutgers.edu/news/legal-issues-watch-2023.