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NLRB Issues New Memo Expanding Penalties for Unfair Labor Practice Violations

20 May

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Update Applicable to:Effective date
All employers regardless of size and sectorSee details below


What happened?

On April 8, 2024, General Counsel (GC) Jennifer Abruzzo from the National Labor Relations Board (“NLRB” or “the Board”) continued to expand the potential penalties for employers found to have committed unfair labor practices (“ULP”) by issuing a new memorandum.


What are the details?

The General Counsel (GC) is expanding labor law remedies to include employees not identified in Unfair Labor Practice (ULP) charges.

  • The GC’s memorandum instructs regional offices to seek remedies for all employees affected by unlawful work rules or contract terms, irrespective of their involvement in a ULP charge.
  • This could increase the time, effort, and financial exposure for employers during investigations and settlements.
  • In unresolved ULP cases, the GC wants the Board to ensure all affected employees are compensated.
  • If an employee faces enforcement action due to an unlawful contract term, the GC advises the Board to withdraw the employer’s action and have the employer cover the employee’s legal fees and costs.
  • There exists an exception: if the employer can demonstrate that it was the employee’s behavior, rather than an illegal rule or policy, that disrupted operations.
  • The new memorandum targets cases that do not necessarily involve specifically identified employees.
  • It instructs Regional Directors to identify affected employees, order the removal of discipline from their records, provide back pay, and request legal fees and costs during settlement efforts.
  • This could significantly increase the liability and settlement costs for employers.
  • For a good breakdown of the new memorandum


Conclusion

The expanded remedies could dramatically increase potential liability for employers, potentially harming their business. It also signals the NLRB’s continued efforts and intent to expand its reach in non-union workplaces and spaces.


Business Considerations

  • Employers should review work rules for potential violations of Section 7, particularly rules on confidential information and disobedience.
  • Employers should consult an attorney to examine for potential work rules that may be questionable, ensuring they are narrowly tailored or properly phrased to comply with the law.
  • Employers should train managers and HR personnel to prevent infringing on employees’ Section 7 rights.
  • Employers should review all other policies for compliance with the NLRA to minimize potential liabilities.


Source References


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This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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