Awards of backpay in unfair labor practice cases are intended to make whole an employee who suffers a loss of earnings because of an unfair labor practice. Because awards of backpay are typically limited to an employee's actual loss, an award of backpay is usually offset by any post termination earnings.
In Atlantic Veal & Lamb, Inc., 355 NLRB No. 38 (May 28, 2010), National Labor Relations Board ruled in favor of a terminated employee claiming he was terminated as a result of engaging in protected activity. At issue was the question of whether the administrative law judge who initially considered the matter properly determined that the employee's claim for backpay was barred because the employee falsified his post termination employment history on a mortgage application.
The administrative law judge hearing the matter initially agreed with the employer that the employee's falsification of his post termination employment history should bar the employee from being awarded backpay for the time period at issue. The administrative law judge expressed concern that the employee's falsification of his post-termination employment history would hinder an accurate determination of the employee's actual post-termination earnings for purposes of applying those post-termination earnings as an offset against an award of backpay.
On review, a three-member panel of the recently reconstituted NLRB reversed the administrative law judge's decision and remanded the matter back to the administrative law judge for further proceedings. The NLRB panel ruled that the administrative law judge gave too much significance to the discrepancies between the information the employee provided on his mortgage application and the information the employee submitted as part of his claim for an award of backpay and ruled that the employee should not be barred from receiving an award of backpay for the time period in question. The NLRB panel also criticized the administrative law's judge's credibility determinations and the impact of those credibility determinations on what may be a broader scope of backpay liability than the NLRB panel would consider appropriate.
The NLRB panel's instructions to the administrative law judge will very likely increase the employee's recovery in the case as the discrepancies and credibility issues will weigh less heavily on backpay calculations.
More broadly, the ruling stands to reward employee dishonesty and reward incomplete or inconsistent employee accounts of their post termination employment and earnings. This may encourage employees and unions to increase their resort to the NLRB to challenge employment related decisions and to enhance leverage and employer exposure during organizing campaigns.
- Partner
Thomas Lenz is a recognized authority on labor and employment law and all issues pertaining to the National Labor Relations Board (NLRB). He advises, trains, and represents employers on a wide range of labor and employment matters. ...
Other AALRR Blogs
Recent Posts
- New San Diego County Fair Chance Ordinance Restricts Employers’ Use of Criminal History
- New Los Angeles County Fair Chance Ordinance Restricts Employers’ Use of Criminal History
- Legislation Impacting California Employee Handbook Policies for 2025
- Update on the California Health Care Minimum Wage
- Resources for California Employers to Track and Confirm Their State and Local Minimum Wage Requirements
- 11 Local Minimum Wage Ordinances Poised to Increase on July 1, 2024
- Fast Food Restaurants -- Be Prepared for a DIR Audit
- U.S. Supreme Court Lowers Bar for Proving Discrimination Claims
- Governor Signs Urgency Legislation Exempting Certain Restaurants from New Fast Food Minimum Wage
- Sexual Violence and Harassment Prevention Training for Janitorial Service Providers Goes Into Effect
Popular Categories
- (156)
- (25)
- (53)
- (39)
- (42)
- (36)
- (6)
- (23)
- (15)
- (15)
- (6)
- (7)
- (6)
- (6)
- (9)
- (6)
- (4)
- (2)
- (3)
- (2)
- (2)
- (2)
- (2)
- (3)
- (3)
- (1)
- (1)
- (2)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
- (1)
Contributors
- Cindy Strom Arellano
- Sarkis A. Atoyan
- Eddy R. Beltran
- William M. Betley
- Brigham M. Cheney
- Michele L. Collender
- Kevin R. Dale
- Scott K. Dauscher
- Alexandria M. Davidson
- William A. Diedrich
- Paul S. Fleck
- Lauren S. Gafa
- L. Brent Garrett
- Evan J. Gautier
- Carol A. Gefis
- Jennifer S. Grock
- Jonathan Judge
- David Kang
- Nate J. Kowalski
- Joshua N. Lange
- Catherine M. Lee
- Thomas A. Lenz
- David M. Lester
- Martin S. Li
- Jorge J. Luna
- Brian D. Martin
- Ronald W. Novotny
- Michael J. O'Connor, Jr.
- Aaron V. O'Donnell
- Shawn M. Ogle
- Sharon J. Ormond
- Nora Pasin
- Joseph E. Pelochino
- Chesley D. Quaide
- Todd M. Robbins
- Irma Rodríguez Moisa
- Saba Salamatian
- Casandra P. Secord
- Jon M. Setoguchi
- Ann K. Smith
- Amber M. Solano
- Susana P. Solano
- Susan M. Steward
- April Szabo
- Jay G. Trinnaman
- Jonathan S. Vick
- Robert L. Wenzel
- Brian M. Wheeler
- Glen A. Williams
Archives
2024
2023
2022
- November 2022
- October 2022
- September 2022
- July 2022
- June 2022
- May 2022
- April 2022
- March 2022
- February 2022
- January 2022
2021
- November 2021
- October 2021
- September 2021
- July 2021
- June 2021
- May 2021
- April 2021
- March 2021
- February 2021
- January 2021
2020
- December 2020
- October 2020
- August 2020
- July 2020
- June 2020
- May 2020
- April 2020
- March 2020
- January 2020
2019
- December 2019
- November 2019
- October 2019
- September 2019
- August 2019
- June 2019
- May 2019
- April 2019
- March 2019
- February 2019
2018
- December 2018
- November 2018
- October 2018
- September 2018
- August 2018
- July 2018
- June 2018
- May 2018
- March 2018
- February 2018
- January 2018
2017
- December 2017
- November 2017
- October 2017
- September 2017
- August 2017
- June 2017
- May 2017
- March 2017
- February 2017
2016
- December 2016
- November 2016
- October 2016
- September 2016
- August 2016
- July 2016
- June 2016
- May 2016
- April 2016
- March 2016
- February 2016
2015
- December 2015
- October 2015
- September 2015
- August 2015
- July 2015
- June 2015
- May 2015
- April 2015
- March 2015
- February 2015
- January 2015
2014
- November 2014
- October 2014
- September 2014
- August 2014
- July 2014
- June 2014
- May 2014
- April 2014
- February 2014
- January 2014
2013
- October 2013
- September 2013
- July 2013
- June 2013
- May 2013
- April 2013
- March 2013
- February 2013
- January 2013
2012
- October 2012
- September 2012
- August 2012
- July 2012
- June 2012
- May 2012
- April 2012
- March 2012
- February 2012
- January 2012
2011
- December 2011
- November 2011
- October 2011
- September 2011
- August 2011
- July 2011
- June 2011
- May 2011
- April 2011
- March 2011
- February 2011
- January 2011