In Connecticut, and in most states, a terminated employee has a number of legal options, causes of action that can, in the end, result in reinstatement. The usual routes include a state or federal court lawsuit, alleging any number of types of discrimination, breach of contract, and multiple torts. Most claims of discrimination must first go through the state or federal administrative process to exhaust remedies, before suit can be filed in court. Initiation of a lawsuit is then followed by years of motion practice, discovery, court and other delays. Although the aggrieved former employee initially went to his or her lawyer looking to be reinstated, by the end of the litigation that remedy has often fallen away as a reasonable option. Faced with this reality, one might suggest the plaintiff seek a preliminary injunction early on in an attempt to at least hold the job open. But this tactic will not succeed due to the stringent standards in most jurisdictions which require the plaintiff to prove likelihood of success on the merits, irreparable harm (money damages would not suffice), a balance of equities in favor of the moving party and the public interest. In addition, the relationship between the employer and former employee may have soured to the point where most judges are reluctant to order such relief. Thus, most employers and their EPLI insurers do not seriously consider reinstatement as a real threat. But, if the plaintiff goes to the National Labor Relations Board with a claim of unfair labor practice, injunctive relief (reinstatement) is a real danger.

“But my company is a non-union employer, so I’m not worried about the NLRB,” you say. Wrong. The National Labor Relations Act, 29 U.S.C §§ 151-169, gives the Board jurisdiction over almost all employers with any connection to interstate commerce, whether for profit or not. The claimant only has to state that he or she was retaliated against for engaging in “concerted activity” in an effort to improve working conditions, that is, for “mutual aid or protection.” If the aggrieved employee can claim he or she was involved with only one other employee regarding working conditions, say an argument with a supervisor about some aspect of the job that impacts more than just the complainant, then there can be concerted activity. Merely going to Human Resources about some working condition prior to being terminated can set up the retaliation claim.

Having received a claim of unfair labor practice, the Board, through a regional office, issues a complaint against the employer, and has the power, under § 160 (j) [Sec. 10(j)], to go directly to the federal district court for injunctive relief, including reinstatement. The examiner may investigate the charge first, but the power to go to court for an injunction can be exercised at any time.

In the Second Circuit, and other Circuits except the Fourth, Seventh, Eighth and Ninth, the district court does not apply the usual test articulated above, but rather a two-part test, pursuant to Mattina v. Kingsbridge Heights Rehabilitation & Care Ctr., 329 Fed. Appx. 319, 321 (2d Cir. 2009). It must find reasonable cause to believe that an unfair labor practice has been committed, but it will defer to the Board unless the Board’s legal or factual theories are fatally flawed. It must also find that the relief is “just and proper.” Again there is deference to the Board, which does not have to show likelihood of success or irreparable harm. Thus, the likely outcome is that the court orders the injunctive relief, based on the Board’s preliminary findings. This can happen in a matter of months, if the NLRB office is aggressive and moves quickly.

What this means for the insurer: When the insured employer notifies you of a complaint from the NLRB, understand that reinstatement as well as damages is at stake, and that the employer will be worried about that real possibility.

What this means for the employer: The NLRB examiner will be less likely to believe that an unfair labor practice has actually occurred if the employer can show that it was planning to terminate or had at least started a disciplinary process that could lead to termination, before the employee makes a complaint that can be considered concerted activity. Therefore, as usual, document, document, document.