NLRB Makes Employers Liable For Damages For Direct and Foreseeable Harms

The National Labor Relations Board (NLRB) recently ruled that employers are liable for compensatory damages in unfair labor practices case. This means employers are now liable for direct and foreseeable harms if they break the law.  Previously, employees could only recover the loss of earnings and benefits. Now, victims of unfair labor practices may recover for other financial costs, such as out-of-pocket medical expenses, credit card debt, or other costs that are a direct or foreseeable result of the unfair labor practices. 

This new rule about compensatory damages for unfair labor practices benefits workers in several ways:

1. Increased compensation: Now workers who have been affected by unfair labor practices can receive full financial compensation to help make up for their losses. Lost wages and benefits are frequently just the beginning of the losses employees incur when employers break the law.

2. Incentive for employers to comply with labor laws: The new rule provides an incentive for employers to comply with the National Labor Relations Act. This can help to deter employers from engaging in such practices, which can benefit workers by creating a more positive and equitable workplace, or at least a place where they are not punished for getting together with coworkers to discuss working conditions.

3. Recognition of the harm caused by unfair labor practices: The new rule recognizes that unfair labor practices can cause severe harm to workers beyond lost wages and benefits, and it provides a mechanism for compensating workers for that harm. This recognition is important because it helps to validate the experiences of workers who have been affected by such practices and it helps to ensure that workers are made whole for their losses.

4. Encourages workers to report unfair labor practices: The new rule can encourage workers to report unfair labor practices, because they know that they may be entitled to compensatory damages if they are affected. This can help to increase awareness of such practices and to ensure that they are addressed, which can benefit workers by creating a safer and more equitable workplace.

5. Promotes fairness in the workplace: The new rule promotes fairness in the workplace by ensuring that workers who are affected by unfair labor practices are compensated for their losses. This can help to create a more just and equitable workplace. Employees are entitled to engage in action with coworkers to discuss working conditions and bring their concerns to managment. Employers will hopefully become more aware that there will be costly consequences of retaliating against employees who do so.

If you think your employer has violated the National Labor Relations Act, contact an employee-side employment attorney in your state to discuss your rights. If you have a union and you think your employer has violated the law, talk to your union leadership about bringing an unfair labor practices claim.


Overall, the National Labor Relations Board's new rule about compensatory damages for unfair labor practices benefits workers by increasing compensation, providing an incentive for employers to comply with labor laws, recognizing the harm caused by unfair labor practices, encouraging workers to report such practices, and promoting fairness in the workplace. By providing workers with greater protections and increased compensation, the new rule helps to create a more positive and equitable workplace for all.

Job Loss Not Irreparable Harm? In What Universe?

Employers are using noncompete agreements to force employees to stay in lousy jobs with lousy working conditions more and more. The poor employee is put in a situation where, if they leave a crappy job, the employer sends a nastygram to their new employer and threatens to sue unless the employee is fired. Then the employee is left to defend themselves with no job and no money.

What's an employee to do?

Well, they can file a suit against an employer for something called declaratory relief, asking the court to determine their rights. The problem is, there's no quick way to get declaratory relief. By the time a judgment is issued, the employee has spent tens of thousands, if not hundreds of thousands, of dollars and the job prospect is long gone.

Employers, if they even think an employee is about to breach a noncompete, can get an injunction. They can ask the court, on an emergency basis, to order the employee to stop working for a competitor or stop contacting clients. They tell the court that the potential loss of customers, the potential that a competitor will learn their secret ways of doing business, is irreparable harm. The courts are quick to find that any potential dollar loss to employers would be irreparable. As an example, in Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 69-70 (2d Cir.1999) the court found it was ,"very difficult to calculate monetary damages that would successfully redress the loss of a relationship with a client that would produce an indeterminate amount of business in years to come."

Employees don't get the same treatment. A recent case confirms the courts' attitude that loss of a job is not irreparable harm for an employee. In Hyde v. KLS Professional Advisors Group, a case out of the Second Circuit, the court found that “difficulty in obtaining a job is undoubtedly an injury, but it is not an irreparable one” because the employee could be adequately compensated with money damages if they win at trial.

So let's see. Loss of corporate money and relationships: irreparable. Loss of human money and relationships: not irreparable. Nice.

I find this kind of reasoning to be not only specious, but immoral and unjust. The way noncompetes are being handled in the justice system is a travesty. Something has to change, but nothing will until voters rise up and demand at least equal rights for humans as compared to their corporate masters.

Here are just some of the irreparable harms real people suffer when they have their new job yanked out from under them:

• Loss of their homes to foreclosure
• Destruction of their credit
• Legal discrimination based on the fact that they are unemployed
• Legal discrimination based on the fact that they have bad credit
• Damage to their resume with a very short-term job
• Damage to their reputation with the new employer who fired them to get out of being sued
• Emotional injuries suffered from being unemployed
• Loss of insurance and resulting health issues

Sure, rich employees can fight and ultimately win against bully employers trying to enforce illegal noncompetes. But most can't afford to fight. They end up out of their industry a year or two, and many end up unemployed that long. Who pays the cost? Taxpayers suffer the increased cost of unemployment benefits, welfare, healthcare and other costs. We also suffer a damaged economy that much longer.

I would submit that most noncompetes violate antitrust laws and are unenforceable due to the employer having no legitimate interest to protect in enforcement. Yet these bully employers usually get away with it because employees can't afford to fight. Maybe it's time for employees to start contacting the Justice Department about antitrust violations if they can't afford to fight. Would the government step in to help against an employer who wants to prevent competition? I don't know.

Because the courts refuse to recognize the utter devastation job loss will certainly wreak by enjoining employers from interfering with their employment with unlawful and unenforceable noncompetes, Congress and state legislatures need to take action to protect individuals. If you think this is wrong, tell your representatives the law needs to change. Only iff enough people speak up will anyone listen.

What Can I Get If I Win A Case Against My Employer?

Most employment cases aren't going to be those big headline multi-million dollar awards. Usually, if you're lucky, you might recover lost wages and benefits. Very few cases result in big money for the former employee, so don't assume you have a winning lottery ticket as soon as a coworker makes a racist or sexist comment.

Damages are the monetary value of the losses that a judge or jury awards to you if you win a lawsuit. They have to have been reasonably foreseeable, and not speculative. Compensatory damages are those that compensate for the actual loss. Punitive damages are those which punish someone who commits an intentional tort to act as a deterrent to future such behavior.

In employment, different types of cases can result in different types of damages. Here are some of the types of damages you might see awarded:

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Thanks again to Gina Misiroglu of Red Room for putting me in touch with the AOL people!