NLRB General Counsel Supports Frontpay as a Remedy in Some Unfair Labor Practice Cases

June 13, 2000 by Beeson Tayer & Bodine

Although frontpay is a remedy available under many employment statutes, until now, it has not been NLRB practice to seek frontpay for violations of the National Labor Relations Act. In February, however, NLRB General Counsel Leonard Page issued a memorandum supporting frontpay as an appropriate remedy in some unfair labor practice situations.

The standard Board remedy for discriminatory discharges is reinstatement and backpay. While backpay compensates an employee for money lost to the date of reinstatement or a decision not to seek reinstatement, frontpay compensates an employee for money for lost future earnings.

Frontpay is essentially an alternative remedy to reinstatement and has been used to enforce other laws when reinstatement is not appropriate or feasible.

Frontpay is often less desirable than reinstatement. First, it is difficult to calculate because it requires making predictions about the future. Second, reinstatement better promotes the purposes of the NLRA. It restores the employee to the position s/he would have had but for the wrongful act and can also act as a walking Notice to employees of their rights under the NLRA.

However, in some cases reinstatement is not possible or would be highly undesirable. In these cases, frontpay assures the victim is not left without a remedy. The General Counsel’s Memorandum lists instances in which frontpay is preferable to reinstatement:

(1) where the employer has impaired the worker’s ability to work, for example, by directly causing the discriminatee to suffer a mental or physical impairment, or indirectly, if the discriminatee suffers injury in the course of interim employment;

(2) where the employer and employees at the worksite are hostile to the discriminatee, and the Union is no longer seeking representation rights;

(3) where the discriminatee is close to retirement; and

(4) as a substitute for a preferential hiring list.

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