NLRB Requires Employers to Pay Employee Taxes on Back Pay

The Board’s determination to force employers to pay the taxes on back pay employees received as the result of filing an unfair labor practice charge with the NLRB was invalidated by the Noel Canning decision. But a few months later, the Board re-ruled in the same way on the same case. Employers must pay Social Security and income taxes on lump sum back pay awards. In theory, if an employee usually makes $25,000 per year and is owed $50,000 in back pay, then that lump sum payment will put the employee in a higher tax bracket (having received $75K that year) than it otherwise would have been had if it made $25K for three consecutive years. The Board believes having the employee who made more money pay more taxes is not fair, so it unilaterally sticks the employer with the bill.