Washington, D.C. — In a 3-1 decision, the National Labor
Relations Board found in King Soopers that the
Agency’s current backpay formula was inadequate to fulfill its fundamental
charge to make victims whole following an unlawful termination. As such, the decision
revised how the Agency will treat reasonable search-for-work and interim
employment expenses, which prior to today’s decision could result in less than
make-whole relief for discriminatees.
Employees will now be compensated for such expenses even
when interim earnings are nonexistent or less than those expenses.
Under Board law, discriminatees have a duty to mitigate
losses due to their unlawful discharge, which generally means securing and
maintaining interim employment. In the course of seeking new employment,
discriminatees often face significant additional expenses such as
transportation, room and board, and/or relocation costs.
Previously, the Board has treated these expenses as
offsets to interim earnings, rather than as a separate component of the
make-whole remedy. Prior to today, those who were unable to find interim
employment received no reimbursement for their reasonable search-for-work and
interim expenses. In addition, individuals whose interim earnings were less
than these expenses would not have been fully compensated for their losses
since such payments could not exceed interim earnings. The decision provides
the following example to demonstrate the shortcomings of the prior approach:
Juana Perez worked at a remote location earning $1,000
per month prior to her unlawful discharge. During the month following her
discharge, Perez spent $500 travelling to different locations looking for work.
Perez could only find interim employment in another state that paid $750 per
month. Perez moved to the new state to be closer to her new job and was also
required to obtain training for her new position, costing her $5,000 and $500,
respectively. Under the Board’s traditional approach, Perez would receive
compensation for only $1,500 of her $6,000 total expenses, far less than
make-whole relief.
The Board affirmed the Administrative Law Judge’s
findings in the case but amended the remedy to reflect the new approach for
awarding search-for-work and interim expenses. The Board ordered King Soopers
to compensate the discriminatee for her search-for-work and interim-expenses
regardless of whether those expenses exceed her interim earnings.
Chairman Mark Gaston Pearce was joined by Members Kent Y.
Hirozawa and Lauren McFerran in the majority opinion. Member Philip A.
Miscimarra dissented in part and concurred in part.
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