Acting General Counsel Issues Memorandum “Lightening The Burden On Discriminatees”

In Backpay Mitigation Evaluations

On March 11, 2011, the General Counsel’s (GC) office of the National Labor Relations Board (NLRB) issued a guideline memorandum setting forth steps to “lighten the burden on discriminatees” during compliance proceedings.  The memorandum cites recent changes to the NLRB’s backpay mitigation doctrine set forth in its pro-employer decisions – Grosvenor Resort, 350 NLRB 1197 (2007) (imposing new job search requirements on discriminatees by establishing a two-week deadline to initiate a search for new work without reduction of backpay) and St. George Warehouse, 351 NLRB 961 (2007) (shifting burden of production of evidence of reasonably diligent search for work to the GC once the employer has shown availability of suitable jobs for the discriminatee).  As a result of these decisions issued by the more employer-friendly Bush Board, the acting GC has proposed that Regions 1) ask the Board to overturn Grosvenor Resort and St. George Warehouse when seeking relief, and 2) more consistently apply existing Board mitigation principles that rely on state unemployment requirements.  Specifically, the acting GC has directed Regions to accept and use receipt of unemployment benefits as evidence of a reasonable search for work.  Furthermore, the acting GC has suggested that employers who wish to rebut such a contention must produce “persuasive evidence as to how compliance with state requirements alone was not a reasonable search.”

This memorandum by the acting GC indicates a predicted shift towards increasing the burden on employers and decreasing the burden on alleged discriminatees by the current administration.

Guideline Memorandum Regarding Backpay Mitigation

© 2011 Kiesewetter Wise Kaplan Prather, PLC