NLRB Issues Important Operations Memorandum On Duty To Mitigate Damages

Grosvenor Orlando Associate, 350 NLRB No. 86 (Sept. 11, 2007), is one of those September 2007 Board decisions viewed by many as anti-labor. In this decision, the Board, divided along party lines, held that that a "reasonably diligent discriminatees should at least have begun searching for interim work at some time within the initial 2-week period. . .” Thus, a discriminatee will lose backpay if there is more than a 2 week period after his/her termination, layoff or refused hire in which s/he does not engage in a search for work. However, even if the discriminatee fails to search for work during this 2 week period, the backpay period does not terminate altogether.

Operations Memo No. 08-54 (May 15, 2008), summarizes this case, provides forms to be used to determine if the alleged discriminatee complied with the duty to mitigate and recommends that the Regions inform the public about this new requirement in Newsletters as part of public information and at the time a charge is filed.

This is an important Memo that litigants need to be aware of.

Mitchell H. Rubinstein