NLRB reissues guidance on damages in unlawful termination cases



In Don Chavas (August 8, 2014), the National Labor Relations Board (NLRB) determined that an employee had been unlawfully discharged as a result of her pro-union activities.  Finding that “her make-whole remedy should also take into account any loss of earnings and benefits she suffered as a result of both of those instances of discrimination,” the NLRB addressed two additional categories of damages available to the plaintiff under the circumstances. 

The NLRB had previously addressed this same issue in a 2012 decision (Latino Express Inc.), but because the Board did not have a proper quorum at that time, it was necessary for it to reiterate these rules in Don Chavas

In a case in which the NLRB orders make-whole relief to a terminated employee, the employer will now be required to “submit the appropriate documentation to the Social Security Administration (SSA) so that when back pay is paid, it will be allocated to the appropriate calendar quarters.” 

In addition, the employer is now required to “reimburse the discriminatee(s) for any additional federal and state income taxes the discriminatee(s) may owe as a consequence of receiving a lump-sum back pay award in a calendar year other than the year in which the income would have been earned had he Act not been violated.” 

To a degree, this is a small, technical point.  Nevertheless, it is worth noting these additional requirements which will exist in future unlawful termination cases before the NLRB.


If you have questions about this Employment Law Alert or wish to discuss the impact of this decision upon your business, please do not hesitate to contact Maury Nicely at Evans Harrison Hackett PLLC, 423/648-7851 or