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NLRB Revises Back-Pay Rules to Aid Victims of Discrimination

September 12, 2016 by

The NLRB has revised its back-pay policies to more fully compensate employees for losses incurred as the result of discrimination because of their union affiliation or activities.  The basic back-pay rule is that discriminatees receive what they would have earned from their employer, but for the discriminatory loss of work, minus what the employee earns from other employment while out of work.  These other wages are called “interim earnings.”  Traditionally, the Board gave employees only limited reimbursement for expenses incurred in searching for other employment while out of work.  Those expenses were simply deducted from interim earnings in determining how much back-pay was owed.  So if the employee had no interim earnings, the employee received no reimbursement for work-search expenses.  And if the work-search expenses exceeded the interim earnings, the employee would receive only partial reimbursement.

The Board, in a decision issued August 24, has fixed this problem.  The Board will now require employers to reimburse discriminatees for their work-search expenses as a separate component of the remedy.  In other words, work-search expenses are now reimbursable in addition to net lost wages.

This decision is another example of the current Board working to root out inequities in the application of the NLRA and make sure the remedy better fits the loss to the employee.

The decision is King Soopers, Inc., 364 NLRB No. 93.

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