Tag Archive for: damages

NLRB permits consequential damages as possible remedies

In follow-up to the prior post regarding NLRB General Counsel Memorandum 21-06, the Board has authorized the award of at least some no previously recognized remedies under the NLRA. The case was Thryv Inc. The Board did not specify particular aspects of relief, saving that for lower decisionmakers in particular cases. Without calling them “consequential damages,” which is a commonly used legal term, the Board held in this 3-2 decision that these new remedies would be available if the monetary losses were the “direct and foreseeable result of a respondent’s unfair labor practice.” The majority did take pains to note that these new remedies would not include “pain and suffering” or other emotional distress.  As with the NLRB General Counsel Memorandum, the Board’s ruling is likely to draw litigation on review.

Employers in New York City face potential for greater punitive damages

The New York Court of Appeals ruled in Chauca v. Abraham that employers face greater exposure for punitive damages under New York City’s anti-discrimination laws than under the federal anti-discrimination law known as Title VII.

The Court observed that existing law mandates that New York City’s law be “as a floor below which the City’s Human Rights Law cannot fall, rather than a ceiling above which the local law cannot rise.”

The Court then noted that New York City’s law is worded differently and, as such, it “requires neither a showing of malice or awareness of the violation of a protected right.” This means a lower standard than Title VII. However, the Court cautioned the standard should not be so low that punitive damages are available whenever a violation is proven warranting compensatory damages.

Punitive damages represent punishment for wrongful conduct that goes beyond mere negligence and are warranted only where aggravating factors demonstrate an additional level of wrongful conduct (see Home Ins. Co., 75 NY2d at 203-204 ). Accordingly, there must be some heightened standard for such an award.

As a middle ground, the Court articulated a new standard for punitive damages under New York City’s law: The plaintiff must prove “the wrongdoer has engaged in discrimination with wilful or wanton negligence, or recklessness, or a ‘conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.'”

A dissenter disagreed arguing the majority had set the bar too low. The dissenter would have allowed punitive damages “whenever liability is proved, unless an employer has adopted and fully implemented the antidiscrimination programs, policies, and procedures promulgated by the Commission on Human Rights, as an augmentation to compensatory damages, and would answer the certified question accordingly.”

Source: https://www.bloomberglaw.com/document/X1OFI9SU0000N?