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.

Nondisparagement and Confidentiality Clauses In Severance Agreements Violate NLRA

Just about every single severance agreement I've ever seen in 36 years of law practice have two standard clauses: the former employee cannot disparage the former employer, meaning they can't say anything negative about the company or its employees and frequently to a broader list of entities; and a confidentiality clause prohibiting the former employee from telling anyone about the agreement, frequently prohibiting them from even saying it exists.

Well, the National Labor Relations Board has just ruled that both provisions are illegal under the National Labor Relations Act.

Regarding nondisparagement: 

This far-reaching proscription—which is not even limited to matters regarding past employment with the Respondent— provides no definition of disparagement that cabins that term to its well-established NLRA definition under NLRB v. Electrical Workers Local 1229 (Jefferson Standard Broadcasting Co.), supra, 346 U.S. at 477. Instead, the comprehensive ban would encompass employee conduct regarding any labor issue, dispute, or term and condition of employment of the Respondent. As we explained above, however, employee critique of employer policy pursuant to the clear right under the Act to publicize labor disputes is subject only to the requirement that employees' communications not be so “disloyal, reckless or maliciously untrue as to lose the Act's protection.” Emarco, Inc., 284 NLRB 832, 833 (1987).  

Further, the ban expansively applies to statements not only toward the Respondent but also to “its parents and affiliated entities and their officers, directors, employees, agents and representatives.” The provision further has no temporal limitation but applies “[a]t all times hereafter.” The end result is a sweepingly broad bar that has a clear chilling tendency on the exercise of Section 7 rights by the subject employee. This chilling tendency extends to efforts to assist fellow employees, which would include future cooperation with the Board’s investigation and litigation of unfair labor practices with regard to any matter arising under the NLRA at any time in the future, for fear of violating the severance agreement’s general proscription against disparagement and incurring its very significant sanctions. The same chilling tendency would extend to efforts by furloughed employees to raise or assist complaints about the Respondent with their former coworkers, the Union, the Board, any other government agency, the media, or almost anyone else. In sum, it places a broad restriction on employee protected Section 7 conduct.  We accordingly find that the proffer of the nondisparagement provision violates Section 8(a)(1) of the Act.

Our scrutiny of the confidentiality provision of the severance agreement leads to the same conclusion. The provision broadly prohibits the subject employee from disclosing the terms of the agreement “to any third person.” The employee is thus precluded from disclosing even the existence of an unlawful provision contained in the agreement. This proscription would reasonably tend to coerce the employee from filing an unfair labor practice charge or assisting a Board investigation into the Respondent’s use of the severance agreement, including the nondisparagement provision. Such a broad surrender of Section 7 rights contravenes established public policy that all persons with knowledge of unfair labor practices should be free from coercion in cooperating with the Board. The confidentiality provision has an impermissible chilling tendency on the Section 7 rights of all employees because it bars the subject employee from providing information to the Board concerning the Respondent’s unlawful interference with other employees’ statutory rights. See Metro Networks, supra, 336 NLRB at 67.

Regarding confidentiality:

The provision broadly prohibits the subject employee from disclosing the terms of the agreement “to any third person.”  The employee is thus precluded from disclosing even the existence of an unlawful provision contained in the agreement. This proscription would reasonably tend to coerce the employee from filing an unfair labor practice charge or assisting a Board investigation into the Respondent’s use of the severance agreement, including the nondisparagement provision. Such a broad surrender of Section 7 rights contravenes established public policy that all persons with knowledge of unfair labor practices should be free from coercion in cooperating with the Board.  The confidentiality provision has an impermissible chilling tendency on the Section 7 rights of all employees because it bars the subject employee from providing information to the Board concerning the Respondent’s unlawful interference with other employees’ statutory rights. See Metro Networks, supra, 336 NLRB at 67.

The confidentiality provision would also prohibit the subject employee from discussing the terms of the severance agreement with his former coworkers who could find themselves in a similar predicament facing the decision whether to accept a severance agreement. In this manner, the confidentiality provision impairs the rights of the subject employee’s former coworkers to call upon him for support in comparable circumstances. Additionally encompassed by the confidentiality provision is discussion with the Union concerning the terms of the agreement, or such discussion with a union representing employees where the subject employee may gain subsequent employment, or alternatively seek to participate in organizing, or discussion with future co-workers.  A severance agreement is unlawful if it precludes an employee from assisting coworkers with workplace issues concerning their employer, and from communicating with others, including a union, and the Board, about his employment. Id. Conditioning the benefits under a severance agreement on the forfeiture of statutory rights plainly has a reasonable tendency to interfere with, restrain, or coerce the exercise of those rights unless it is narrowly tailored to respect the range of those rights. Our review of the agreement here plainly shows that not to be the case. We accordingly find that the proffer of the confidentiality provision violates Section 8(a)(1) of the Act. 

So, is this a magic wand? Did such provisions suddenly go poof? No. Management side will fight this decision like cornered rats. Still, keep an eye out for further developments. In the meantime, you might want to file with NLRB if your employer presents you with any such provisions in a proposed severance agreement.

NLRB Proposed Joint Employer Rule Would Help Workers

Last year, the National Labor Relations Board proposed a new rule that would change how it decides who is an employer. Under the proposed rule announced September 6, 2022, two or more employers would be considered joint employers if they “share or codetermine those matters governing employees’ essential terms and conditions of employment,” such as wages, benefits and other compensation, work and scheduling, hiring and discharge, discipline, workplace health and safety, supervision, assignment, and work rules. The comment period ended in December, so we can expect the new rule to arrive any time now.

To put it simply, when two employers are connected in some way, they become joint employers and they both have responsibility for their workers. It's like when two people get married, they both have responsibilities for each other and their life together.

It's important because it means that workers have more protections and can hold both employers accountable for things like unionizing and unfair labor practices.

The new joint employer rule will have many benefits for employees. Here are some of the most significant ways that employees can benefit from this rule:

1. Greater protections against retaliation: When an employee is jointly employed by two employers, they are protected by the National Labor Relations Act (NLRA) against retaliation from either employer. This means that if an employee engages in protected concerted activity, such as organizing a union, discussing wages, or discussing working conditions, they cannot be fired or otherwise punished by either employer.

2. More bargaining power: When employees are jointly employed by two employers, they can bargain with both employers for better wages, benefits, and working conditions. This gives employees more bargaining power and ability to unionize than they would have if they were only employed by one employer. The possibility of NLRB sanctions will hopefully make smaller employers think twice about engaging in unfair labor practices.

3. More coverage: If one employer does not fall under the NLRB's jurisdiction because it has too little income or does not meet other jurisdictional standards, combining two employers will make it easier to bring the company under the umbrella of the National Labor Relations Act.

4. Better wages and working conditions: Ultimately, the ability to bargain collectively will help increase wages and improve overall working conditions for employees.

Overall, the National Labor Relations Board's joint employer rule benefits employees by providing greater protections, improved working conditions, and more bargaining power. By holding both employers accountable, employees are more likely to have a voice in the workplace and to receive fair treatment.

Needless to say, managment-side is howling about the possibility of this rule going into effect. They are crying gloom and doom and predict business armageddon. I suspect that this NLRB won't accede to their demands and that this rule or something quite similar will be the final rule that is implemented this year.   

SNL's "It's Pat" Shows How Easy It Is To Respect Nonbinary Coworkers

 With all the anti-trans stuff coming out of the GOP, and especially Florida, I started thinking about an old Saturday Night live sketch, “It’s Pat.” And when I first thought about it, I thought it might be considered offensive to nonbinary people now. But then it occurred to me that the sketch actually shows how easy it is to respect the pronouns of nonbinary workers. The sketch features a character named Pat, whose gender is not specified or obvious, and is played by Julia Sweeney.

The other characters in the sketch are confused about which pronouns (either "he" or "she") and other gender-specific terms to use to refer to Pat, so they avoid using gender-specific language. For instance, on Pat’s birthday they start to sing, “For he’s/she’s a jolly good fellow,” but after a mixture of choices they settle on, “For Pat’s a jolly good person.” Pat’s coworkers ultimately refer to Pat as “they/them” in order not to misgender Pat. They did this naturally, if a little awkwardly, before the use of neutral pronouns became both common and a political football.

The sketch is meant to be humorous, but it also demonstrates both the ease of using the correct pronouns for nonbinary workers, and how we used to have more respect for our fellow humans. Nowadays, the right would probably say the sketch is too "woke" and claim offense of the use of neutral language. Using the correct pronouns is a basic form of respect and helps to create an inclusive and welcoming workplace for all employees. This sketch shows that it is not difficult to respect the pronouns of nonbinary workers and that everyone can do it with a little effort and awareness.

Like with the coworkers in “It’s Pat,” sometimes neutral language and pronouns can be confusing at first. But with a little effort and respect, it is actually pretty easy. If you make a mistake, just correct it. Deliberately misgendering people is cruel and disrespectful.

By demonstrating the ease of using the correct pronouns, the sketch should encourage everyone to make an effort to be more inclusive and respectful in their interactions with nonbinary coworkers.

FTC Proposes Ban On Noncompete Agreements

 The Federal Trade Commission is proposing a complete ban on agreements banning former employees and independent contractors from going to work for competitors. Per the FTC:

FTC’s proposed rule would generally prohibit employers from using noncompete clauses. Specifically, the FTC’s new rule would make it illegal for an employer to:enter into or attempt to enter into a noncompete with a worker;
maintain a noncompete with a worker; or
represent to a worker, under certain circumstances, that the worker is subject to a noncompete.

The proposed rule would apply to independent contractors and anyone who works for an employer, whether paid or unpaid. It would also require employers to rescind existing noncompetes and actively inform workers that they are no longer in effect.

The proposed rule would generally not apply to other types of employment restrictions, like non-disclosure agreements. However, other types of employment restrictions could be subject to the rule if they are so broad in scope that they function as noncompetes.

The FTC said that noncompetes are, "a widespread and often exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses. By stopping this practice, the agency estimates that the new proposed rule could increase wages by nearly $300 billion per year and expand career opportunities for about 30 million Americans."

Before you get too excited, remember that the rule hasn't been put in place yet, there will be lots of legal challenges, and there is no way Congress will do anything to support the agency. The Supremes have been all about limiting the power of federal agencies, so expect them to block the rule if it goes into place.  Also remember that nonsolicitation agreements will probably still be legal.

Still, once it goes into effect, there will be a brief period where noncompetes will not exist. So people will get jobs, and then they might have to give them up and face lawsuits if the courts reverse the ban. I recommend caution, but also will keep my fingers crossed that these agreements are finally eliminated for good.

How Did I Do On 2022 Predictions? Call Me Cassandra

I made some predictions last year about what to expect in 2022. How did I do? Pretty darned well. Here is the breakdown.

1. More pro-employee NLRB: I predicted we'd see NLRB cracking down on employer retaliation and union busting efforts, and we'd also be back to seeing more pro-employee decisions on non-union "concerted activity" retaliation. This year they expanded the remedies that can be awarded for unfair labor practices, reinstated the possibility of micro-units, required employers to give access to union protesters, and are undoing the Trump-era anti-employee joint employer rule to make it easier for employees to bring claims.

2. EEOC will re-energize: I predicted they'd start to bounce back from the severe cuts under the past administration, and they have. They're catching up on backlog and hiring more mediators. I also predicted that they would focus on issues like sexual orientation that got pushed aside under the last administration, and they have. However some conservative courts vacated a guidance on this topic so the fight will continue to go on.

3. Supremes go anti-employee: I predicted that, while the agencies will be more pro-employee, the courts are going to take a sharp anti-employee turn. I said we should look for really pro-management decisions on the federal level. Yeah. That happened. Sigh.

4. Paralysis on noncompetes: I predicted that, even though President Biden issued an executive order asking the federal agencies to focus on noncompetes, there would be little the agencies can do without legislation. I predicted that Congress won't do anything. It didn't. I predicted that neither will the Florida legislature. It certainly didn't. However, the FTC just announced it plans to ban noncompetes. How will that work? I suspect not well, and there will be a huge fight, but we'll see.

5. Sexual harassment crackdown: I predicted that, with President Biden's order criminalizing sexual harassment in the military, the issue will get more attention. I predicted we would see some more crackdown on sexual harassers. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was signed in March, and that's a good step in the right direction.

6. COVID, COVID, COVID: I predicted the virus wouldcontinue to be an issue. Yeah. SMH. I predicted that OSHA would continue to try to get employers to maintain safe workplaces. The Supremes and the right wing will continue to fight. The Supremes blocked OSHA’s national Emergency Temporary Standard which required employers with at least 100 employees implement mandatory COVID vaccination for employees or opt for a weekly testing alternative. I predicted Florida would continue to be the Wild West. And it did. It just empaneled a grand jury to investigate vaccine mandates. Sigh.

7. More unions: I predicted that, as NLRB becomes more employee-friendly, we'd see more unionization attempts. I predicted that Amazon would have a union in 2022, and I'm proud to day my daughter was part of that successful effort. I predicted that, once Amazon had a union, employees of other workplaces previously thought impossible would begin efforts to unionize. They did. I also precicted that union busters would make a fortune in 2022 as employers try to fight back. They almost certainly did.

8. Disability discrimination: I predicted that, now that employees realize that it's easy to work remotely, and now that employers want employees back in the office, we'd see more disability discrimination cases. I predicted that employees who sought remote work as a reasonable accommodation would face resistance, but employers would lose the argument that granting the accommodation is a hardship. There have been quite a few cases this year, and more are in the pipeline.

9. Zoom: I predicted that Zoom would remain in many courtrooms, depositions and mediations. So far that has been the case. 

10. Anti-employee laws: I predicted some extreme anti-employee laws in red states attacking LGBT folks, abortion, marijuana, protests, and free speech. And, of course this has happened. I did not predict that Roe would be overturned last year, but it is something I certainly have been warning about for years as a possibility. The red states have gone nuts. Florida in particular. It will get worse before it gets better. 

Quiet Quitting: New Anti-Employee Term For Wanting To Have A Life

 There's a new term getting flung around by management types: quiet quitting. It's when employees actually want to do their job as described for the hours they were told the job would take (and for which they are being paid). Apparently, terrible bosses who have failed to hire enough staff and failed to accurately describe jobs want to vilify employees for wanting to have a life.

You heard about Elon Musk demanding that his employees commit to being "hardcore" (meaning willing to work 24/7) or leave.

And I've seen folks on social media bragging that they and their staff work until midnight. Like that's a good thing.

I remember working briefly for a large law firm. Associates would brag about sleeping there, blowing off family birthdays and funerals, and never taking vacations. And I would think to myself, what's the point? What's the point of making big bucks if you don't actually use the bucks to enjoy your life?

Gen Z gets it. They don't want to have jobs that are their whole life. They understand that having a job is for the purpose of providing the necessities you require to live and, if you're lucky, even the luxuries you want in order to enjoy your life. 

Take away the evenings and weekends, the holidays, the time with family, the vacations, and you have nothing. Because that employer that wants you to be loyal 24/7 has no loyalty to you. You likely can be fired at will, for any reason or no reason at all, unless you live in Montana or have a contract saying otherwise. It used to be that companies were loyal to their employees, but those days passed in the 70s. Now employees are treated like disposable cannon fodder.

Don't give up your actual life for corporate life. What's the point of making money if you can't enjoy it?

The U.S. needs to stop this crazy nonsense. Look at France. It has laws that protect employees from being treated like this. It's illegal to eat lunch at your desk, because it's good for your health to take a real lunch break and get out of the office. They also have a right-to-disconnect law, giving employees the right to stop answering emails and texts after hours. Overtime must be paid for work over 35 hours, and there is a weekly maximum number of hours set at 44 per week, and employees must have at least 11 consecutive hours of daily rest, and minimum rest of 35 consecutive hours at least once per week.

Employers need to hire enough employees to do the jobs needed during regular working hours instead of treating employees like indentured servants. If your employer wants you to work 24/7 and you aren't a supervisor, it's time to think about forming a union. If you are a supervisor and can't unionize, it's time to look for a workplace that understands its employees are entitled to have a life.

If you think we should be more like France and less like Elon, talk to your legislators about passing some pro-employee laws.