Make-Whole Or Make-Believe: NLRB "Foreseeable" Damages Creates Circuit Split

Circuit Split Over Thryv Remedies. On October 20, 2025, the U.S. Court of Appeals for the Ninth Circuit generally upheld expanded make-whole remedies contemplated by the National Labor Relations Board (the "Board") in Thryv, Inc., 372 NLRB No. 22 (2022). But since Halloween this year, both the Fifth and the Sixth Circuits joined the Third Circuit in rejecting Thryv remedies. The Board's expansion of remedies through Thryv—seen by many as practically unbounded and an unlawful exercise of regulatory authority—has added entirely novel remedies to unfair labor practice litigation.

Thryv Introduces New, "Foreseeable" Labor Remedies in 2022. During the 87 years before Thryv, the Board awarded so-called "equitable" remedies in unfair labor practice cases based on its statutory authority in Section 10(c) of the National Labor Relations Act (the "Act"). Section 10(c) provides that the Board shall take "such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act." Board remedies have gone beyond reinstatement and backpay over the years, but, until Thryv, monetary awards generally fell under the umbrella of backpay. Traditional remedies have included, among other things, payment of lost employment benefits, medical costs related to lost healthcare coverage, and missed pension premiums.

The Arguments Against Thryv. Critics of Thryv argue that Section 10(c) limits the Board to award only equitable remedies—not legal remedies. Thus, the inclusion of remedies for "foreseeable pecuniary harms" is contrary to the language and purposes of the Act and arguably based in tort law. Notably, the Supreme Court has previously held that, while the Board has broad authority to craft remedies under Section 10(c), that mandate is also fundamentally limited: "Congress did not establish a general scheme authorizing the Board to award full compensatory damages for injuries caused by wrongful conduct." UAW v. Russell, 356 U.S. 634, 643 (1958). However, in Thryv, the Board's novel, make-whole remedy arguably provided "consequential" or "compensatory" damages by including "all direct foreseeable pecuniary harms," which could apply to things such as credit card late fees, child care costs, and penalties for early withdrawals from retirement accounts. Litigants challenging the law have also argued that (a) the contemplated remedies violate the Seventh Amendment right to a jury trial, and (b) they are potentially unbounded, which could lead to uncertain, speculative, and extremely punitive damages calculations.

Rejection of Thryv Consequential Damages by Acting General Counsel of the NLRB and Three Circuit Courts of Appeal. Thryv remedies have proved controversial and have faced significant opposition. Shortly after the beginning of the second Trump administration earlier this year, the Trump-appointed Acting NLRB General Counsel expressly disavowed Thryv non-equity remedies and instructed NLRB Regional Directors not to seek such remedies. See NLRB General Counsel Memorandum 25-06. And as noted above, the Third, Fifth, and Sixth Circuits rejected Thryv, concluding that these new remedies were consequential damages which exceeded the Board's authority under the Act. See NLRB v. Starbucks Corp., 125 F.4th 78 (3d Cir. 2024); Hiran Mgmt., Inc. v. NLRB, — F.4th —, 2025 WL 3041862 (5th Cir. Oct. 31, 2025); NLRB v. Starbucks Corp., — F.4th —, 2025 WL 3089798 (6th Cir. Nov. 5, 2025).

Approval of Thryv Remedies by the Ninth Circuit. Alternatively, the Ninth Circuit generally upheld Thryv damages but reserved judgment on specific damages that it deemed too speculative: "[o]nly actual losses suffered on account of an unfair labor practice . . . should be made good. And, indeed, the Board must still establish, in a later proceeding, how any make-whole relief it seeks is equitable or sufficiently tailored to the actual, compensable injuries suffered by the employees in this case." Int'l Union of Operating Eng'rs, Stationary Eng'rs, Local 39 v. NLRB, 127 F.4^th 1023 (9th Cir. 2025) (internal quotation marks and citations omitted).

Current Status: Good Law but Dead Letter? While Thryv's remedy expansion remains binding Board caselaw (for now), there will be significant uncertainty until either the Board revisits the issue or the U.S. Supreme Court rules on it. Meanwhile, employers facing unfair labor practices in other circuits that have not explicitly rejected Thryv already, including on the west coast in the Ninth Circuit, should be wary of enforcement of Thryv damages.

However, Thryv enforcement is uncertain because of dead letter Acting General Counsel Memorandum 25-06 and the current Board's unwillingness to issue such remedies. Moreover, the Board still does not have a quorum of members and is currently unable to issue any precedential opinion overturning Thryv.

So far, no party has sought U.S. Supreme Court review of these cases, and it is unclear what the Board's litigation strategy will be to support Thryv remedies when the Acting General Counsel just disavowed them. Stay tuned—we will continue to update as the situation progresses.

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