The New NLRB Begins Change of Law on Remedies

By Ted Olsen

We have been warning clients that the new National Labor Relations Board is expected to issue decisions and rules changing traditional federal labor law. Now we are beginning to see the NLRB use unfair labor practice cases as a vehicle for the development of such new law. Two recent cases addressing remedies for ULPs illustrate this point.

In J & R Flooring Inc., 356 N.L.R.B. No. 9 (Oct. 22, 2010), the NLRB ruled that, when an employer is found guilty of an unfair labor practice and is ordered to post a paper notice regarding the ULP in the workplace, the employer will also be ordered to give employees electronic notices if the employer customarily uses intranets, websites, e-mail or other electronic methods to communicate with employees.

The Board's recent decision in Kentucky River Med. Ctr., 356 N.L.R.B. No. 8 (Oct. 22, 2010) - which discontinued the Board practice of adding simple interest to back pay awards and replaced it with compound interest - will have great financial significance to employers. This change, by itself, was not particularly remarkable, except for the fact the Board ruled that the interest will be compounded daily - a far more generous award than the annual compounding of interest on back pay commonly granted under Title VII and other discrimination laws. See, e.g., Hylind v. Xerox Corp., 2010 U.S. Dist. LEXIS 98192 (D. Md. Sept. 17, 2010); Scott v. Peterson, 2010 U.S. Dist. LEXIS 81387 (N.D. Ill. Aug. 11, 2010); James v. AMTRAK, 2005 U.S. Dist. LEXIS 5401 (S.D.N.Y. Mar. 28, 2005); Hite v. Vermeer Mfg. Co., 361 F. Supp. 2d 935 (S.D. Iowa 2005) (stating that no legal authority could be found supporting monthly compounding).

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

	Contact Us Services Attorneys News and Events Publications About the Firm Inclusiveness Careers Blog In the Media Events and Registration Press Releases Speaking Engagements Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Support Staff Publications Client Advisories Home > Publications > Client Advisories > View The New NLRB Begins Change of Law on Remedies By Ted Olsen We have been warning clients that the new National Labor Relations Board is expected to issue decisions and rules changing traditional federal labor law. Now we are beginning to see the NLRB use unfair labor practice cases as a vehicle for the development of such new law. Two recent cases addressing remedies for ULPs illustrate this point. In J & R Flooring Inc., 356 N.L.R.B. No. 9 (Oct. 22, 2010), the NLRB ruled that, when an employer is found guilty of an unfair labor practice and is ordered to post a paper notice regarding the ULP in the workplace, the employer will also be ordered to give employees electronic notices if the employer customarily uses intranets, websites, e-mail or other electronic methods to communicate with employees. The Board's recent decision in Kentucky River Med. Ctr., 356 N.L.R.B. No. 8 (Oct. 22, 2010) - which discontinued the Board practice of adding simple interest to back pay awards and replaced it with compound interest - will have great financial significance to employers. This change, by itself, was not particularly remarkable, except for the fact the Board ruled that the interest will be compounded daily - a far more generous award than the annual compounding of interest on back pay commonly granted under Title VII and other discrimination laws. See, e.g., Hylind v. Xerox Corp., 2010 U.S. Dist. LEXIS 98192 (D. Md. Sept. 17, 2010); Scott v. Peterson, 2010 U.S. Dist. LEXIS 81387 (N.D. Ill. Aug. 11, 2010); James v. AMTRAK, 2005 U.S. Dist. LEXIS 5401 (S.D.N.Y. Mar. 28, 2005); Hite v. Vermeer Mfg. Co., 361 F. Supp. 2d 935 (S.D. Iowa 2005) (stating that no legal authority could be found supporting monthly compounding). Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. ©2010 Sherman & Howard L.L.C. November 3, 2010 Copyright 2000-2013 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use