NLRB Changes Its Formula for Calculating Wage Loss
By Kevin M. Mosher • Aug 26, 2016
Never wanting to be outshined by its competitor investigative agencies – the Department of Labor (DOL) and the Equal Employment Opportunity Commission (EEOC) – in the realm of spontaneous employee-friendly rulemaking, the National Labor Relations Board (NLRB) this week overturned decades of past decision-making by changing the way it measures back wage loss for unlawfully affected employees.
In a 3-1 decision this week, the NLRB expanded its “make whole” remedy to reimburse employees who were unlawfully fired (in violation of the National Labor Relations Act or NLRA) to include, at a minimum, job search expenses. Historically, over the past 80+ years the NLRB had limited its awards to the difference between what the employee would have earned had she not been unlawfully fired by the company and what the employee did earn. Expenses incurred by the employee in searching for work were never part of the calculation, until this week.
It is unclear how much of an impact this decision will have moving forward. The NLRB is a highly political administrative agency and its decisions routinely flip and flop from administration to administration. Moreover, it will not be every case where the employee incurs job search expenses. That said, it would not be surprising to see unions create a cottage industry of union-affiliated job search firms, seminars, and other expense-driven vehicles used by terminated employees expecting to be reimbursed for all such search related expenses once the NLRB determines they were unlawfully terminated.
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