- within International Law and Immigration topic(s)
- with Senior Company Executives and HR
- with readers working within the Consumer Industries and Healthcare industries
The National Labor Relations Board's remedial authority remains unclear following a November 5, 2025, decision of the United States Court of Appeals for the Sixth Circuit in NLRB v. Starbucks Corp. In its decision, the Sixth Circuit rejected the expanded standard for monetary remedies adopted by the Board in its Thryv decision, finding that the standard went beyond the remedial authority expressly provided by the National Labor Relations Act ("Act"). In so holding, the Sixth Circuit joined the Fifth and Third Circuits in finding the Board exceeded its authority; only the Ninth Circuit has found differently to date.
In Thryv, Inc., 372 NLRB No. 22 (2022), the Board held that charging parties can be awarded compensation for "all direct and foreseeable pecuniary harms" of an unfair labor practice, including childcare expenses, penalties from early withdrawals on retirement accounts, credit card interest, late or missed rent, and other costs that employees may experience as a result of unfair labor practices engaged in by their employer.
Background
The Sixth Circuit case involves a barista in Ann Arbor, Michigan, who initiated union-organizing efforts at her store location in January 2022. The employee wore union pins, placed union stickers in the store, and attended a videoconference before the National Labor Relations Board ("NLRB" or the "Board") regarding Workers United's efforts to represent store employees.
In late February 2022, approximately one month after initiating union-organizing activities, the employee departed early from her shift, leaving a co-worker alone, in violation of a "two-employee rule." In April 2022, the employee was relieved of her job responsibilities due to her "fail[ure] to communicate in line with . . . [the Company's] mission and values and fail[ure] to meet expectations in [her] role" on the night she left early. Workers United filed an unfair labor practice charge with the NLRB on the employee's behalf, alleging that she had been terminated because of her union-organizing efforts in violation of the NLRA. The Board agreed, and the employer appealed the decision to the Sixth Circuit.
The Sixth Circuit Decision
The Sixth Circuit found that substantial evidence supported the Board's conclusion that the employee's discharge violated the Act. However, in a de novo review of the relief awarded, a divided panel of the Sixth Circuit determined that the Board's remedy—which required the employee to be made "whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms, suffered as a result of the discrimination against her"—was not consistent with the Act and posed Constitutional concerns.
The court explained: "That the NLRA nowhere specifies monetary relief is . . . a strong indicator that Congress did not design the Act to empower the Board with such legal remedial power. . . . [T]he only remedies enumerated in [NLRA] § 10(c)—reinstatement and backpay—land clearly in equity." The Court continued: "[R]eading § 10(c) to authorize the Board to award compensatory damages as part of an administrative proceeding . . . raises a constitutional question over a fundamental right ratified in the Seventh Amendment" because it "reflects legal relief amounting to money damages, to which a jury trial right attaches."
According to the Sixth Circuit, rendering awards "to restore the status quo" is within the scope of the NLRB's authority under the NLRA. However, Thryv remedies "reach much farther than just that" because "they broaden the realm of § 10(c) relief to harms bearing, at best, a tangential relation to the respective unfair labor practice." The Sixth Circuit cautioned: "[B]y awarding 'all direct or foreseeable pecuniary harms,' the Board orders employers to reimburse a vast realm of tangentially related injuries . . . individual employee and employer circumstances notwithstanding. . . ."
The Widening Circuit Split
On October 31, 2025, a Fifth Circuit panel in Hiran Management v. NLRB also held that the NLRB's award of Thryv remedies overstepped the NLRA's bounds. The Fifth Circuit explained:
The Board attempts to characterize the Thryv remedy as equitable . . . because it is designed to restore the status quo. . .. [L]egal relief often has the same goal. . .. In demonstrating no principled distinction between legal and equitable relief, the Board's result diverges sharply from the well-established principle that compensatory damages are a form of legal relief. . . . The Board is not entitled to re-create established distinctions in the law . . . .
The tension between legal and equitable remedies was likewise noted by the Third Circuit in its December 2024 decision, NLRB v. Starbucks Corp. The Third Circuit held that the NLRB exceeded its authority under the NLRA when awarding Thryv remedies and clarified: "The NLRA . . . limits the Board's remedial authority to equitable, not legal, relief. . . . While the Board can certainly award some monetary relief to the employees, that relief cannot exceed what the employer unlawfully withheld."
In contrast to the Third, Fifth, and Sixth Circuits, in October 2025 in Int'l Union of Operating Eng'rs Stationary Eng'rs Loc. 39 v. NLRB, the Ninth Circuit reaffirmed en banc a January 2025 split panel ruling, and held that Thryv remedies are "within the Board's broad discretion" under the NLRA. According to the Ninth Circuit, "making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the board enforces."
Until the Supreme Court definitively resolves this Circuit split, or Thryv is revisited by the Board, the exact boundaries of the NLRB's remedial authority will remain uncertain.
What Should Employers Do Now
- Monitor developments in the Courts and at the NLRB: On February 14, 2025, in Memorandum GC 25-05, the Acting General Counsel withdrew guidance from the former General Counsel concerning remedies to be sought by the NLRB's regional offices. We expect the NLRB will revisit this standard when a quorum is reached, and that the new General Counsel may also provide new guidance on this issue. We also expect that this issue may ultimately be headed to the Supreme Court for resolution.
- When faced with a charge, analyze which Circuit's precedent applies to your business: While this analysis is fact specific, and we recommend enlisting the assistance of counsel in making this determination, the Third Circuit has jurisdiction over Delaware, New Jersey, and Pennsylvania; the Fifth Circuit covers Louisiana, Mississippi, and Texas; the Sixth Circuit covers Kentucky, Michigan, Ohio, and Tennessee; and the Ninth Circuit covers employers in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
- Continue review of policies and practices, and supervisor training concerning NLRA Compliance: The NLRB has jurisdiction over employers that meet the Act's jurisdictional thresholds regardless of whether they have employees represented by a union or not, and potential remedies under Thryv could be substantial. Also, even if the Thryv standard is reversed, the Board's statutory authority to award "make whole" relief remains in place. Continued training for supervisors concerning recognizing and lawfully responding to potential protected activity can minimize this risk.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
