Employment Law Daily NLRB seeks input on earnings offsets, ALJ authority to issue consent orders
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Tuesday, February 23, 2016

NLRB seeks input on earnings offsets, ALJ authority to issue consent orders

Gearing up to address substantial questions of Board policy and practice at the General Counsel’s prompting, the NLRB on Friday, February 19, issued a call for briefs in two pending cases: King Soopers, Inc. Should the NLRB revise its treatment of search-for-work and interim employment expenses when awarding a make-whole remedy to unlawfully discharged employees? The agency has asked the parties in King Soopers (27-CA-129598) and interested amici to weigh in. At the compliance stage, the Board has traditionally treated job-search and interim employment expenses as an offset reducing the amount of interim earnings subtracted from gross backpay. The General Counsel has asked the Board to change this practice and award such expenses regardless of whether the discriminatee received interim earnings, arguing that the current practice is inequitable and contrary to the Board’s remedial principles. The NLRB is seeking input on whether it should adopt the change recommended by the General Counsel. “What considerations warrant retaining the Board’s traditional treatment of search-for-work and interim employment expenses?” Alternatively, “What considerations warrant making the requested change?” Further details on submitting briefs in the King Soopers case can be found in the NLRB’s formal notice and invitation to file briefs. U.S. Postal Service. At issue in United States Postal Service (07-CA-142926) is whether the Board may continue to permit administrative law judges to issue a “consent order,” incorporating the terms proposed by a respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the General Counsel. The NLRB granted the General Counsel’s request for special permission to appeal an ALJ’s order adopting a settlement offer to which all other parties in the case had objected. The Board invited the parties and interested amici to address whether: Under Section 3(d) of the Act, may the NLRB permit ALJs to issue a “consent order,” subject to review by the Board, incorporating the terms proposed by a respondent to settle an unfair labor practice case, to which no other party has agreed, over the objection of the General Counsel? If it is allowed to do so, should the Board change or discontinue this current practice as a matter of policy? Further details on submitting briefs in the U.S. Postal Service case can be found in the NLRB’s formal notice and invitation to file briefs.

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