NLRB Deviates from Make Whole Remedies, Permits Windfall Remedies for Unlawfully Reduced Hours

The National Labor Relations Board has, until now, had authority to make aggrieved employees whole. Unlike courts of law that can award punitive damages or put plaintiffs in a better position than they were before their claim arose, the Board was limited to “make whole” remedies that restored wronged employees to the same position they were in before an unlawful act occurred. To this end, back pay remedies were reduced by any income received from the time the unlawful act occurred to the time the back pay is paid. This makes sense. An employee who was fired for a lawful Facebook post from his $1000 a week job for Company A made $800 a week from his subsequent employer, Company B. Ultimately, that employee is reinstated at Company A, and Company A must pay the $200 per week difference to the employee to make him whole.

Now, the Board has changed the law and awards full back pay for employees regardless if they received interim earnings. This amounts to a windfall for the aggrieved employee. But, there’s a catch. The windfall is only for employees whose hours are reduced, not terminated like the example above. As stated by Circuit Judge Neil Gorsuch in his dissent, “when the employer unlawfully reduces the employee’s hours to anything short of zero hours . . . the Board now says it will never under any circumstances deduct interim earnings from a backpay award. Thus treating cases that seem to differ mostly in degree [compared to termination cases] as different in kind.”

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at