Under the National Labor Relations Act (NLRA), the remedies available to a successful claimant have been limited to “make whole relief.”  Like Title VII before the Civil rights Act of 1991, relief under the NLRA typically was limited to lost wages, benefits, other economic losses, and reinstatement. The underlying policy behind such “make whole relief” is restoration of the successful claimant, as nearly as possible, to the position he or she would have been but for the illegal discrimination. In a groundbreaking decision, King Soopers Inc. and Wendy Geaslin, NLRB Case Number 27-CA-129598, the National Labor Relations Board (NLRB) held that damages available to an employee, who had been interrogated, suspended and then fired for participating in union activity, must include expenses for the post-separation search-for-work and interim employment expenses as a direct part of the make whole remedy.  Prior to this ruling, the NLRB traditionally had treated reasonable search-for work and interim employment expenses as a mere offset that reduced the amount of interim earnings that is deducted from gross back pay. In rejecting this traditional approach, the NLRB found that such expenses should be calculated separately from back pay – i.e., they must be awarded regardless of whether the successful claimant received any interim earnings or had interim earnings less than such expenses.  The Board found that the practical result of the traditional approach has been that successful claimants are improperly awarded “less than make whole relief  . . . contrary to the central remedial principle underlying the [NLRA].”

 The King Soopers Inc. decision highlights the NLRB’s expansion of the traditional remedies available to alleged victims of discrimination or retaliation under the NLRA. As a result, employers are well served to carefully examine all of the underlying facts prior to terminating or taking other adverse action against an employee to ensure that his or her rights under the NLRA have not been violated.