On February 19, 2016, the National Labor Relations Board (the “Board”) invited briefs from interested parties in a case considering whether the Board should revise its treatment of search-for-work expenses and interim employment expenses as part of the make-whole remedy for unlawfully discharged employees.

For decades, the Board has treated an unlawfully discharged employee’s reasonable search-for-work and interim employment expenses as an offset to reduce the amount of interim earnings subtracted in calculating gross backpay.  Under current Board law, a discharged employee who incurred expenses while searching for interim work, but was ultimately unsuccessful in finding employment, is not entitled to any reimbursement for expenses.  Likewise, a discharged employee who obtains interim employment but earns less interim earnings than his or her search-for-work expenses also is not entitled to reimbursement. In King Soopers, Inc. (27-CA-129598), the Board’s General Counsel contended that current Board law is inequitable and contrary to the National Labor Relations Act’s remedial principles.  According to the General Counsel, a discharged employee should be entitled to an award of search-for-work expenses as part of the make-whole remedy regardless of whether the discharged employee received interim earnings.

The Board’s invitation to file briefs asks three questions:

  1. Should the Board adopt the change requested by the General Counsel?
  2. What considerations warrant retaining the Board’s traditional treatment of search-for-work and interim employment expenses?
  3. What considerations warrant making the requested change?

Briefs are due by March 18, 2016, with responsive filings by April 1, 2016.