Employer’s Burden Eased In NLRB Backpay Cases

October 13, 2007 by Beeson Tayer & Bodine

In St. George Warehouse, 351 NLRB No. 42 (September 30, 2007), the Republican Board majority shifted from employers to the General Counsel the burden of producing evidence that an employee terminated in violation of the NLRA made a reasonable search for interim employment. Unlawfully discharged employees have an obligation to mitigate their damages, and an employer that proves a discriminatee failed to make reasonable efforts to find interim employment can reduce its backpay liability. The burden of proving a failure to mitigate is on the employer. This new decision keeps that burden in place, but now forces the discriminatee to come forward with evidence of a reasonable job search.

The dissent commented: “Departing from more than 45 years of established precedent, the majority relieves wrongdoers of their burden to produce all of the facts to substantiate the affirmative defense that a discriminatee unreasonably failed to mitigate damages and, instead requires the General Counsel to produce facts to negate it. The result is to place a stumbling block before the discriminatees and, ultimately, to frustrate enforcement of the” NLRA.

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