December 15, 2022
Volume XII, Number 349
December 15, 2022
– Guide to Creating a Corrective Action Plan Template by: Dr.Nick Oberheiden
– Ten Environmental and Energy Issues to Watch in 2023 by: J.Michael Showalter and Amy Antoniolli
– S.D.N.Y.Voids ERISA Plan’s Arbitration Provision by: Joseph E Clark and Daniel B.Wesson
– DHS Issues Guidance on Additional H-2B Temporary Nonagricultural…by: Jessica Feinstein
– 12 Days of CRM: Day 1 – How to Measure CRM Success by: Christina R.
Fritsch JD
– Staff Says Some Non-GAAP Financial Disclosures Are Beyond Redemptive…by: Keith Paul Bishop
– Full Speed Ahead: District Court Entitled to Explore Litigation…
by: Amol Parikh
– Economically Motivated Adulteration in Honey by: Food and Drug Law at Keller and Heckman
– China Announces New Management Measures for Food-Related Products by: David J.Ettinger and Eric Gu
– Ratings Agencies Increase Focus on “Green Ratings” by: Jacob H.
Hupart
– Applying Collateral Estoppel in IPRs by: Alexandra Cavazos, PhD
– The Ultimate Lawyer Time Off Checklist by: Kamron Sanders
– PTO Announces Cancer Moonshot Expedited Examination Pilot Program by: Bernard P.Codd
– Do Law Firms Use HubSpot? by: CRM News and Updates, Lawmatics
– The State of ESG Reporting in Australia by: Clive Cachia and Adam Levine
December 14, 2022
– Certain Green Cards Getting 24-Month Extensions as USCIS Deals With…by: Michael H.Neifach
– Australia: Climate and Sustainability-Related Financial Disclosure…
by: Jim Bulling
– New Washington State Guidance A Reminder That More State Pay…by: Aaron Vance
– NLRB Unleashes New Damages Against Labor Law Violators by: Mark J.
Neuberger
– Illinois Appellate Court Weighs in on Biometric Data Policies by: David M.Poell and Kari M.Rollins
– FTC Issues Green Guides Questionnaire by: Phyllis H.Marcus
– Webinar Recording: Navigating Today’s Privacy Compliance…by: Cynthia J.
Larose
– US Executive Branch Update – December 14, 2022 by: Stacy A.Swanson
– AML Bill Key to Busting Russian Oligarchs by: Stephen M.Kohn and Grace Schepis
– New York State Provides Protection for Use of Leaves of Absence by: Jonathan A.Wexler
– US Executive Branch Update – December 13, 2022 by: Stacy A.Swanson
– Looking Ahead to 2023: Pay Transparency Developments by: Allan S Bloom and Evandro C Gigante
– What Does 2023 Hold for California COVID-19 Supplemental Paid Sick…by: Benjamin A.Tulis
– AND ANOTHER ONE! TCPA CLASS DISCOVERY LIMITED: Third Party Subpoena…
by: Jenniffer Cabrera
– Speak Out Act Takes Effect, Enhanced Data Privacy Obligations for…by: George Carroll Whipple, III
– California Starts Mandating Employee Bereavement Leave in 2023 by: Paul R.Lynd
– GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory…by: Eric J.Troutman
– 401(k) Compliance Check #12: Don’t Borrow Trouble – Correcting…by: Belinda S.Morgan
– FDA Published Food Safety Culture Literature Review by: Food and Drug Law at Keller and Heckman
– Does a business have to provide a privacy notice directly to a…
by: David A.Zetoony
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.Department of State to Update Design on Nonimmigrant and…by: Ashley K.
Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.Troutman
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…
by: James Frazier
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…
by: Paul V.Kelly
– Damages in Pre-Certification Discovery are Premature, Discovery…by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.
Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…by: Abby M.Warren
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…by: Kathryn C.
Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.Bergeson
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.Burton, III and Sahir Surmeli
– Energy & Sustainability IP Updates — December 2022 by: Brad M.
Scheller
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– Chips Chatter: December 5-12, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– How Many Behavioral Advertising Trackers Do Websites Deploy Currently? by: David A.
Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.Hupart
– Cross Border Recognition, 25 years on: the view from each side of the…by: Michelle N.
Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…by: Simone R.D.
Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.Hupart
December 12, 2022
– Raters gonna rate…but there’s a bright side! by: Daniel B.
Guggenheim
– SEC Awards More than $20 Million to Whistleblower by: Mary Jane Wilmoth
– Duty to Preserve Evidence Covers Climate Review by Higher Educational…by: Monica H.Khetarpal and Laura A.Ahrens
– Preliminary Determination of Circumvention Regarding Solar Energy…by: Gregory Husisian and John E.Turlais
– Estate Planning for Football Season Ticket Holders by: Katherine M.
Szymanski and Rebecca K.Wrock
– Associate Attorney General Vanita Gupta Issues Statement on 2021 FBI…by: United States Department of Justice (DOJ)
– NLRB General Counsel Proposes Lower Standard for Requiring Employers…by: Adam C.Abrahms and Steven M.Swirsky
– American Hospital Association Urges DEA to Issue Special Registration…
by: Nathaniel M.
Lacktman
– EPA Announces $25.7 Million in Grants to Support Water Systems in…by: EPA
– New York State Expands Workplace Protections for Nursing Employees by: Evandro C Gigante and Laura M.Fant
– Weekly IRS Roundup December 5 – December 9, 2022 by: Tax Practice Group McDermott Will Emery
– CMS Announces Strategy on Value-Based Payments for Specialty Care by: Anahita Anvari
– DOL Proposes Self-Correction Option and Other Changes to Voluntary…by: Justin S Alex
– The City of Los Angeles’ Fair Work Week Ordinance Requires…by: Tomi Oshita
NLRB Dramatically Increases Liability for Unfair Labor Practices with Far-Reaching “Consequential Damages”
On December 13, 2022, the National Labor Relations Board (“Board” or “NLRB”) issued a decision that greatly broadens the remedies available for violations of the National Labor Relations Act (“Act”).
Prior to this decision, the Board’s “make whole” remedies for more than 80 years have generally included only backpay, reasonable search-for-work expenses, and interim employment expenses.
In a 3-2 decision, the Board found the employer Thryv Inc.
violated the Act by laying off workers without first bargaining with their union and by withholding information about the layoff.[1] The NLRB ordered the employer to provide compensation and reimbursement for all traditional remedies and all “direct or foreseeable pecuniary harms” resulting from the violations.The damages at issue in this case include the restoration of the laid off employees’ books of business (their prior customer assignments), compensation for reimbursements for the costs of maintaining a car for use on company business, and out-of-pocket medical expenses incurred by a former employee who had been laid off while on disability leave for a high-risk pregnancy.
Under the new standard, to successfully obtain compensation and reimbursement for direct or foreseeable pecuniary harms, the Board’s General Counsel will be required to present evidence during compliance proceedings proving the amount of alleged financial harm, that the harm was direct or foreseeable, and that it was due to the unfair labor practice.The employer will have an opportunity to rebut the General Counsel’s evidence.
The Board declined to recognize these broader damages as “extraordinary relief” to be provided only in the most egregious cases and explained that this new remedy will be available in any case where the traditional make whole remedy would be considered.
The new damages remedy may lead to Board orders requiring employers to provide compensation to charging parties for “out-of-pocket medical expenses, credit card debt, or other costs simply in order to make ends meet” if the costs were direct or foreseeable consequences of the respondent’s alleged unfair labor practice.
The ruling expressly states that the Board intends to apply their new “policy” on damages to all pending cases before them.
The Board indicated in its decision that these damages are unlikely to be the end of the expansion of the make whole remedies, and that the new remedies do not reflect the limit of the Board’s statutory remedial authority.
Members John Ring and Marvin Kaplan both dissented from the majority’s ruling, arguing that the new standard “opens the door to awards of speculative damages that go beyond the Board’s remedial authority” and could “invite protracted litigation over causation at compliance.” They also opined that these sweeping remedies could face constitutional challenges.
Liability for “Every Kind of Direct and Foreseeable Cost”
Prior to the issuance of this decision, the Board invited public briefs on the potential expansion of consequential damages, though the Board specifically refused to use the term “consequential damages” for its new remedies in its Tuesday ruling (recognizing using that common law term was likely to add fuel to the inevitable judicial challenges to the new standard).Instead, the Board couched its new remedy as “all direct or foreseeable pecuniary harms,” a distinction that may be of negligible difference.
General Counsel Jennifer Abruzzo (“GC”) submitted a brief on this issue which urged the Board to include in its orders “reimbursement of every kind of direct and foreseeable cost” associated with job loss including, but not limited to:
restoring prior health insurance policies or purchasing a new policy with comparable coverage;
out-of-pocket health expenditures that would have been covered;
compensation for penalties assessed for being uninsured;
compensation for penalties associated with prematurely withdrawing money from a retirement account;
compensation for damages to an employee’s credit score;
compensation for financial losses from having to liquidate a personal savings or investment account;
fees and expenses for training or coursework required to renew or obtain a new security clearance, certification, or professional license;
legal fees for defending against unpaid bills;
expenses related to housing, relocation, transportation, and/or childcare; and
costs related to providing relief for victims of labor exploitation or employees targeted for their immigration status.
Although the Board did not expressly adopt the GC’s expansive list, noting “[w]e will not attempt today to enumerate all the pecuniary harms that may be considered direct or foreseeable,” their decision made clear it was because the Board did not want to limit the range of potential costs.Thus, the GC’s list certainly falls within the type of damages contemplated by the Board’s decision.Additionally, though Abruzzo also argued for emotional distress damages in her brief, the Board declined to include those in their remedies at this time.
However, the Board also noted in a footnote that its decision does not reflect the limits of the Board’s authority and other relief could be ordered in a future case.
Given the GC’s directive in Memorandum GC 21-07, issued on September 15, 2021, to the Board’s Regional offices to settle for nothing less than the full panoply of remedies, the Board’s Thryv decision will impede the likelihood of settlement and drive up the costs of any potential settlement as employers generally no longer have the option of using settlement discussions to negotiate for a compromise resolution.
Ever since the Board has become more aggressive in seeking unusual remedies, settlement agreements have included compensation to workers for late rent and car payments, interest payments on loans, the cost of baby formula, and the cost of retrofitting a car to make it usable for a new job.[2] Future cases will likely elucidate the reach of remedies for “direct or foreseeable pecuniary harms.”
Employers should take measures to ensure their compliance with the Act and continue monitoring the constant changes to the Board’s practices and challenges to Board precedent.Employers with matters pending in front of the NLRB should be aware of the potential impact the expanded remedies may have on their case.
FOOTNOTES
[1] Thryv, Inc.and International Brotherhood of Electrical Workers, Local 1269, 20–CA–250250.
[2] GC Abruzzo highlights these, as well as other settlement compensation for derivative economic harm, in Memorandum GC 22-06..