News & Commentary April 7, 2023

[Omaha Steve]

https://onlabor.org/april-7-2023/

By Julio Colby

Julio Colby is a student at Harvard Law School.

In today’s News & Commentary: the NLRB General Counsel calls for the Board to overturn several precedents in a pair of cases; and a Black Tesla worker’s discrimination damages are slashed by a jury on retrial.

On Monday, the NLRB General Counsel called for the Board to change course on how it determines mitigation of employee back pay awards. Under current Board precedent, a worker must begin searching for a “substantially equivalent” job within two weeks of their termination for the back pay period to begin. Employers bear the burden of demonstrating that similar work was available, after which prosecutors must provide witnesses or documents to show that the worker tried to find a job while the unfair labor practice proceeding was occurring. Prosecutors are asking the Board to return to its previous rule, which placed the burden solely on the employer to show that there were equivalent jobs in the area to which the worker did not apply in order to reduce back pay. Agency prosecutors say the reversal would “prevent employees from being punished for pursuing protected Section 7 activity during the back pay period.” Otherwise, they argue, workers fired for protected picketing would have to cease that picketing to mitigate damages for their employers.

FULL story at link above.