December 15, 2022
Volume XII, Number 349
December 15, 2022
– Private Equity & Healthcare: Antitrust Enforcement in 2023–PE…by: John D.Carroll and Michael G.McKinnon
– CFPB Fall Supervisory Highlights Find Credit Reporting Failures, Junk…by: Moorari Shah and A.J.
S.Dhaliwal
– Labor Board Returns to ‘Overwhelming Community of Interest’ Standard…by: Jonathan J.
Spitz and Richard F.Vitarelli
– NLRB Expands Make-Whole Remedy to Include ‘Direct or Foreseeable’…by: C.Thomas Davis and Zachary V.
Zagger
– Beyond Backpay: Labor Board Adds Extra Compensation to Employees in ‘…by: Jonathan J.Spitz and Richard F.Vitarelli
– Special Delivery: NLRB Returns to Obama-Era Standard to Limit…
by: Michael J.Lebowich and Joshua S.Fox
– Recent Developments to the 340B Drug Pricing Program [PODCAST] by: Victoria K.Hamscho and Andrew D.
Ruskin
– Festive NLRB Provides Holiday Gifts to Unions/Employees by: Robert E.
Entin
– Third Circuit: Whistleblowers Are Not Shielded From Discipline for…by: Steven J Pearlman and Pinchos (Pinny) Goldberg
– Psychedelic Drugs – Easing the Regulatory Hurdles for Development by: Lauren P.Carboni and Devaki Patel
– CFPB and State Regulators Hone in on Interest-Bearing Crypto Accounts by: Moorari Shah and A.J.
S.Dhaliwal
– U.S.Supreme Court to Decide Whether Appeal of Denial of Motion to…by: William Robert Gignilliat, IV and Samia M.
Kirmani
– OCC Revises Policies and Procedures for Civil Money Penalties by: Moorari Shah and A.J.S.
Dhaliwal
– Several New Group Health Plan Reporting Deadlines Are Approaching –…by: Nick J.
Welle and Hannah R.Demsien
– CMS Includes MAOs in Data Exchange and Prior Authorization…by: Christine M.
Clements and Sheela Ranganathan
– Abortion-Related Time Off After Dobbs: How the FMLA and Other Laws…by: Frank C.Morris, JR and Susan Gross Sholinsky
– Battle Lines Drawn on Electric Vehicle Tax Credit Specifics by: William Ball
– Emerging Threats: Cyber Attacks and Side-Channel Evolution by: Iliana L.Peters and Colin H.Black
– ’Tis the Season for California’s 2023 Legislative Update: Employer…by: Vanessa C.Krumbein and Rana Ayazi
– 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
– Treasury Announces a Second Application Round for ECIP Investments by: Neil E.Grayson and Robert Klingler
– S.D.N.Y.Voids ERISA Plan’s Arbitration Provision by: Joseph E Clark and Daniel B.Wesson
– Michigan Minimum Wage and Paid Leave Update: Agency Guidance and the…by: Emily M.
Petroski and Allan S.Rubin
– NLRB Reinstates “Micro Unit” Standard Making it Easier for Unions to…by: James J.La Rocca and Robert T.Dumbacher
– Love and Marriage: How the Respect for Marriage Act Affects Employers…by: J.William Manuel and Anne R.Yuengert
– 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
– A Direct Hit: NLRB Expands Make-Whole Remedies to Cover All “Direct…by: Michael J.Lebowich and Joshua S.Fox
– NLRB Dramatically Increases Liability for Unfair Labor Practices with…by: Adam C.Abrahms and Neresa A.
De Biasi
– False Claims Act: Prediction on Supreme Court Ruling on Government…by: Lori A.Rubin and Pauline R.Wizig
– Proxy Season Greetings: ISS and Glass Lewis Announce Policy Updates…by: Colleen Hart and Andrea S Rattner
– Supreme Court Declines to Clarify FCA Pleading Standard by: Scarlett Singleton Nokes and Virginia C.Wright
– 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
– Increased Federal Attention to Skilled Nursing Facility Compliance…by: Anne M.Murphy and Rachel Hold-Weiss
– European Commission to Start Adequacy Decision Adoption Process for…by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– Applying Collateral Estoppel in IPRs by: Alexandra Cavazos, PhD
– Appellate Court Addresses How Much Information Employee Must Submit…by: Tasos C.Paindiris and David Mohl
– Improving Liquidity Through Real Estate Sale and Leaseback…by: Simone Wijngaard and Alexander van Hövell
– 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
– Litigation Minute: Year in Review—Trending Topics Across the 2022…
by: Lindsay Sampson Bishop and Jacquelyn S.Celender
– The State of ESG Reporting in Australia by: Clive Cachia and Adam Levine
– Supreme Court to Hear Case on Whether Lawsuits are Stayed During…by: Ron Chapman, Jr.and Zachary V.Zagger
December 14, 2022
– Certain Green Cards Getting 24-Month Extensions as USCIS Deals With…
by: Michael H.Neifach
– Ankura CTIX FLASH Update – December 13, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– Australia: Climate and Sustainability-Related Financial Disclosure…by: Jim Bulling
– Ankura CTIX FLASH Update – December 9, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– New Washington State Guidance A Reminder That More State Pay…by: Aaron Vance
– Washington Supreme Court Affirms Ecology’s Authority to Bypass…by: Erika H.
Spanton and Allyn L.Stern
– 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
– Traveling for the Holidays: Planning for Successful International…
by: Ann H.Lee and Michael J.Bonsignore
– NYC Council Considering Proposal To Significantly Limit At-Will…by: Evandro C Gigante and Joseph C O’Keefe
– Webinar Recording: Navigating Today’s Privacy Compliance…
by: Cynthia J.Larose
– Pennsylvania Takes Emergency Action to Regulate Conventional Oil…by: David J.Raphael and Brianna K.Edwards
– A Look At The Upcoming European Unitary Patent And Unified Patent…
by: Angela B.Freeman, M.S.and Rory P.Pheiffer
– Massachusetts Unveils New Workplace Poster, Notifications for…by: Rachel Reingold Mandel and Ashley Prickett Cuttino
– US Executive Branch Update – December 14, 2022 by: Stacy A.Swanson
– Michigan Court of Appeals Hears Argument on the Adopt and Amend…by: Luis E.
Avila and Maureen Rouse-Ayoub
– California Wage and Hour Issues for Employers to Watch in 2023: Is My…by: Karen E.Wentzel and Michael W.
Kelly
– AML Bill Key to Busting Russian Oligarchs by: Stephen M.Kohn and Grace Schepis
– SEC and CFTC Whistleblower Programs Reveal Continued Success…by: Jason Zuckerman and Matthew Stock
– Prices Keep Rising: Labor Board Significantly Expands Remedies…by: David J.Pryzbylski and Aaron Vance
– More on Understanding the Medicare Overpayment Appeals Process by: Kendall R.
Walker and Courtney G.Tito
– 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
– Reminder: New Tax Forms for Retirement Plan Payment Withholding…by: Jeffrey M.
Holdvogt and Diane M.Morgenthaler
– Ninth Circuit Answers Lingering Question on Scope of ‘Autodialer…
by: Joseph C.Wylie II and Nicole C.Mueller
– Speak Out Act Takes Effect, Enhanced Data Privacy Obligations for…by: George Carroll Whipple, III
– Preparing for New SBA Certification Requirements for Veteran-Owned…by: Erin L.
Toomey and Frank S.
Murray
– California Starts Mandating Employee Bereavement Leave in 2023 by: Paul R.Lynd
– HHS Bulletin: Covered Entities’ Disclosure of PHI Collected via…by: Ryan P.Blaney and Danielle L.
Brooks
– When 2 Minus 1 Still Equals 2: Combining Lots in a Planned Community by: Dana M.Lingenfelser and Kristin D.Mitcham
– 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
– EPA Announces Proposed RFS for 2023-2025, Will Hold Public Hearing in…
by: Lynn L.Bergeson and Carla N.Hutton
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– Unintended Consequences: Legal Compliance Concerns With Long-Term…by: Amber K.Dodds and Robert S.
Nichols
– 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
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– 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
– U.S.Supreme Court Hears Oral Argument in Case Testing Limits of…by: Michelle E.
Phillips and Christopher M.Repole
– 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
– DOJ Settlement with Electronic Health Records Provider Highlights…by: Ty E.
Howard and Lane M.Webster
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…by: Abby M.Warren
– Increasing US Enforcement Action for Sanctions Violations by Crypto…by: Hannah Laming and Adam Klauder
– 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
– California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide…
by: Taryn McPherson and Whitney Jones Roy
– Considerations for Public Company Bylaw Amendments in View of the New…by: Frank M.
Placenti and Doron Lipshitz
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.Bergeson
– Telecom Alert: Providers Support 10-10.5 GHz NPRM; FCC Blocks Student…by: Jaimy “Sindy” Alarcon and Jim Baller
– New DOL Rule Enables Consideration of ESG Factors in Investing, Plus…by: Johnjerica Hodge and Danette R.Edwards
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.
Burton, III and Sahir Surmeli
– Court Holds NC State Health Plan Constitutes “Health Program or…by: Caroline Turner English and Alison Lima Andersen
– Energy & Sustainability IP Updates — December 2022 by: Brad M.Scheller
– Another Block Falls: BlockFi Files for Chapter 11 Protection,…by: David A.Lopez-Kurtz and Alex J.Albers
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– IRS Announces 2023 Increases to Estate and Gift Tax Exclusions by: Katlyn E.Koegel and Stephen C.Rohr
– FDA Letter States that β-Nicotinamide Mononucleotide is Not Lawful…
by: Food and Drug Law at Keller and Heckman
– New York City’s Automated Employment Decision Tools Law Enforcement…by: Adam S.Forman and Nathaniel M.Glasser
– Chips Chatter: December 5-12, 2022 by: Pablo E.
Carrillo and Ludmilla L.Kasulke
– FTC Releases Tentative Agenda for December 14 Open Commission Meeting by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– 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
– Investor-State Arbitration: 2022 ICSID Rule Amendments and Update on…
by: Joseph J.Mamounas and Claudia D.Hartleben
– Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer…by: J.Hunter Robinson and Josh Kleppin
– 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
NLRB Expands Make-Whole Remedy to Include ‘Direct or Foreseeable’ Damages
Fulfilling a top priority for National Labor Relations Board (NLRB) General Counsel Jennifer A.Abruzzo’s activist agenda, on December 13, 2022, the Board issued a decision that expands, arguably beyond statutory limits, the remedies recoverable by a successful charging party in unfair labor practice cases.The NLRB ruled that its make-whole remedy includes compensating employees “for all direct or foreseeable pecuniary harms suffered” as a consequence of labor violations.Although the 3-2 decision is styled as a clarification of the Board’s existing make-whole remedy that is typically limited to back pay, the ruling significantly expands an employer’s monetary liability particularly in discharge cases.It will clearly make such cases more expensive, more complex, and more difficult to settle.
Direct or Foreseeable Harms
According to the decision, “foreseeable harms” includes those for which an employer or union “knew or should have known would be likely to result from its violation of the” National Labor Relations Act (NLRA).The majority pointed to the example of requiring the reimbursement of out-of-pocket medical expenses incurred by an employee after the employee lost health insurance coverage as the result of an unlawful termination.
The majority further expressly declined to limit its ruling to “extraordinary relief,” and instead said that compensation for foreseeable harms applies “in every case” in which the make-whole remedy applies, “regardless of the egregiousness of the violation or the respondent’s past conduct.”
Under the decision, in order to prove a claimed remedy in a case, the NLRB general counsel will be required to present evidence demonstrating financial harm that is a direct or foreseeable consequence of the charged party’s unfair labor practice.
The employer or union facing the charge will then have an opportunity to rebut that evidence.
In a statement issued along with the decision, NLRB Chair Lauren McFerran stated that the NLRB “clearly has the authority to comprehensively address the effects of unfair labor practices” and that by “standardizing the Board’s make-whole relief to fully include the direct or foreseeable financial harms suffered by affected employees” the NLRB “will better serve the important goals of the National Labor Relations Act.”
However, NLRB members John Ring and Marvin Kaplan argued in a dissenting opinion that the majority’s standard “opens the door to awards of speculative damages that go beyond the Board’s remedial authority.” They pointed out that the standard might permit recovery for any losses, “regardless of how long the chain of causation may stretch from unfair labor practice to loss.”
Ring and Kaplan further argued that if the NLRB “strays into areas more akin to tort remedies” it faces potential issues with the Seventh Amendment of the U.S.
Constitution.The majority may be concerned with that argument since they took great care to say it did not intend to institute “a policy or practice of awarding consequential damages, a legal term of art more suited for the common law of torts and contracts.” To the contrary, the majority argued that while the make-whole remedy may resemble compensation for a private injury in a tort proceeding, the remedy is grounded in the Board’s statutory authority in Section 10(c) of the NLRA to effectuate the purposes of the Act.
Even if the Board does have the authority to order such remedies it will “invite protracted litigation over causation and compliance,” the dissent argued.
Key Takeaways
In evaluating ULP cases, employers will now need to consider this expanded range of remedies and its resulting potential monetary liability.Requiring an employer to compensate for “direct or foreseeable pecuniary harms” could significantly increase the size of awards in labor cases.The majority’s decision is also likely to add an additional layer of litigation in labor cases in the form of back pay proceedings, which are likely to become far more frequent and the forum for determining such issues as foreseeability and causation of alleged harms for which the general counsel is seeking recovery.
More broadly, this decision is likely to increase the number of unfair labor practice (ULP) charges filed and to make them more difficult to settle than they already are.These new remedies are certain to be part of the general counsel’s settlement demands.Already, General Counsel Abruzzo has ordered prosecutors to seek “full remedies” in negotiated settlement agreements, including reimbursement for credit card late fees and for the loss of a home or car for failure to keep up with loan payments.
Other remedies already secured in settlements include repaying the cost of baby formula because of the loss of lactation rooms in the workplace, issuing apology letters to reinstated employees, and mandated trainings for supervisors and managers.This will all unquestionably lead to more frequent and protracted litigation.
The decision comes near the end of Member Ring’s term, which expires on December 16, 2022, and is expected to be the first of a string of cases to be issued before or shortly after his departure..