On April 8, National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued GC Memo 24-04, providing yet another memorandum broadening remedies for employees that have been wrongfully discharged for engaging in union or other protected concerted activity.  In this memo, GC Abruzzo encouraged Regions to pursue make-whole remedies for all employees, including those not identified in an unfair labor practice investigation, allegedly harmed by the unlawful rules or contract terms. 

At the outset of the memo, Abruzzo touted the Regions’ successes in obtaining make-whole relief for employees, including compensation for, among other things:

  • penalties imposed for early retirement fund withdrawal caused by cessation of participation;
  • unreimbursed tuition payments, where that reimbursement was part of the employee’s compensation package;
  • unreimbursed web development, marketing, and business insurance costs made by an employee on commission in order to increase sales of the employer’s product;
  • job search costs, such as reimbursement of mileage and gas costs, car/ride service payments, job search app costs, and resume printing fees;
  • daycare costs;
  • specialty tool costs;
  • late fees and/or related accrued interest on payments of rent, utilities, mortgage, tax, auto loans and credit cards;
  • bank overdraft fees; utility disconnection/reconnection fees;
  • reductions in earnings and/or penalties resulting from a dischargee dipping into savings or retirement funds to replace income lost;
  • costs associated with loans and credit card advances; and
  • legal representation costs in eviction proceedings.

Notably, Ms. Abruzzo directed Regional offices to seek full-make whole remedies for all employees possibly harmed as a result of an unlawful work rule or contract term, regardless of whether those employees are identified during the course of an unfair labor practice investigation.  She reasoned that the remedy of a rescission of an overbroad, unlawfully promulgated, or unlawfully applied rule or contract term does not expunge the discipline imposed under the unlawful provisions, and therefore fails to make all impacted employees whole. Accordingly, Abruzzo directed Regional Directors to seek make-whole remedies for all impacted employees during the limitations period, which, generally, is the six-month period prior to the filing of a charge.  

To accomplish this, Regional offices will now seek such information from the employer during settlement efforts, which would plausibly entail combing through an employer’s disciplinary decisions, identifying any employees who have been disciplined, and requiring the employer to explain why such discipline was issued to each employee, even though they were not named or otherwise involved in the unfair labor practice charge. 

As our partners Chad Horton and Fiona Ong have discussed in blogs concerning remedies in litigation before the Board and full remedies in settlement agreements, GC Abruzzo continues to seek stiff remedies against employers alleged to have violated the NLRA.  This GC memo makes clear that employers should be prepared to respond to broad information requests from the NLRB concerning employees not previously identified in charge documents, and possibly be forced to comply with the broad array of remedies above for all impacted employees, even if the employees were not identified during the course of an unfair labor practice investigation.

As always, we will keep you updated as developments arise.