Wyatt Employment Law Report

NLRB Adopts New Remedial Policies Regarding Interest on Backpay and Notices to Employees or Members

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By Edwin S. Hopson

In two decisions issued October 22, 2010, the National Labor Relations Board adopted two new remedial policies:

●adding daily compound interest to backpay and other monetary awards, and,

●requiring many employers and unions to notify workers electronically of NLRB orders in unfair labor practice cases.

The Board’s stated goal was making NLRB remedies more effective as well as more in line with current legal and workplace practices.

Thus, in the future, as decided in a unanimous decision in Kentucky River Medical Center, 356 NLRB No. 8 (2010), interest on backpay and all other monetary awards will be compounded daily.  In reaching this decision, the NLRB cited the evolving practice of other legal regimes including the Internal Revenue Code.  Previously, the Board’s practice was to order only simple interest on backpay awards.

In J. Picini Flooring, 356 NLRB No. 9 (2010), the Board according to its press release, ordered that “employers who customarily communicate with their employees electronically, either through e-mail or an Internet or Intranet site, will be required to post remedial notices the same way, in addition to posting a paper notice to a bulletin board.”  The same rule will apply to union respondents who customarily communicate with their members electronically. The decision was 3-to-1, with Chairman Liebman and Members Becker and Pearce in favor of the new rule, and Member Hayes dissenting.

The Board stated that the following sentence would be inserted in its remedial order:

“In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, or other electronic means, if the Respondent customarily communicates with its employees [members] by such means.”

The necessity of issuing the notice to employees in this way is to be taken up at the compliance stage of unfair labor practice cases.

In dissent, Member Hayes, the only Republican member of the Board, stated that the new electronic posting requirement should be viewed as a special remedy, only to be used in egregious cases.  In addition, he pointed out that once a respondent communicates electronically, it loses control over the notice which could conceivably be altered once in cyberspace.  Member Hayes also argued that such an electronic posting may reach employees or members not involved in the underlying unfair labor practice case. Finally, Hayes criticized the majority for deferring this new remedial measure to the compliance stage for fear it would create more litigation.

The cases may be accessed at:

http://www.nlrb.gov/shared_files/Board%20Decisions/356/v3569.pdf and,

 http://www.nlrb.gov/shared_files/Board%20Decisions/356/v3568.pdf

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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