Tag Archive for: remedies

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.

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NLRB General Counsel pushes for enhanced remedies under NLRA

In NLRB General Counsel Memorandum 21-06, the NLRB General Counsel has ordered Board offices to seek remedies never before recognized as available under the NLRA, including the following, each subject to circumstances described in the Memo:

  • Enhanced consequential damages
  • Including even front pay
  • And reimbursement of union organizing costs
  • Mandating hires
  • Lost wages to individuals not authorized to work in the United States.

Attempts to seek those not previously recognized remedies are sure to be subject to litigation, including over the constitutionality of the General Counsel’s office ability to expand the NLRA without congressional legislation or even regulatory rulemaking.

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Tenth Circuit takes expansive view of remedies available in Title VII claims

In a recent decision, the Tenth Circuit took an expansive view of the remedies available to a plaintiff in a Title VII claim, including on the following points of law:

  1. The court held that reinstatement is the strongly preferred remedy, instead of front pay. Often in cases, especially after the tribulations of a trial, courts have been prone to enter a monetary award of front pay, rather than ordering that the employee be re-hired, but the Tenth Circuit held that reinstatement should be the “preferred remedy” and should be ordered absent “extreme hostility” between the parties. Whether extreme hostility exists should be gauged by asking whether there are “objective” reasons that would make it “unworkable.” Objective reasons do not depend on the parties’ own subjective feelings, especially not the defendants’. For example, in the case before it, the court rejected as “far short” of sufficient the defendants’ argument that the litigation tactics employed by the plaintiff and their attorney in the case had been “unfair.” Likewise coworker dislike of the plaintiff is not generally enough to establish “extreme hostility,” nor is management’s “speculating in general and conclusory manner” that the plaintiff would not be welcomed back.
  2. The court clarified that an order of reinstatement does not block an award of front pay. Since back pay is awarded for the period of time from wrongful termination until judgment is entered, front pay should be awarded for the gap going forward between the period of time starting with the entry of judgment until reinstatement.
  3. The court held that, when determining the proper remedy, a plaintiff’s award should not be docked for failure to mitigate if the plaintiff turned down work that was not “substantially equivalent.” While the defendant need not prove the plaintiff turned down a job that was “virtually identical,” the defendant must at least prove the turned-down job was “substantially equivalent,” in order to terminate liability for lost pay and reinstatement.
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Courts are limited to granting relief that will personally benefit plaintiff

The Eleventh Circuit held that courts are limited, in Title VII cases (the federal statute that governs most discrimination and retaliation cases, including related to race, color, religion and sex), to granting relief that personally benefits the plaintiff. In this case, the plaintiff a former employee proved a violation but no damages. Instead, the trial court awarded her an injunction requiring the defendant to clean her personnel file and further to implement a training program. The Eleventh Circuit held the training-program requirement went too far because training would not benefit the plaintiff, a former employee.

In a separate unpublished opinion, the Eleventh Circuit remanded the case for the trial court to determine if the plaintiff was still the “prevailing” party eligible to recover attorney fees, especially since she had apparently rejected a higher settlement offer.

Source: Furcron v. Mail Centers Plus, LLC, case no. 187-12598 (11th Cir. 6/12/19) and

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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?

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