General Counsel Issues Memo On Back Pay Liability of Discriminatees

General Counsel Memo No. 09-01, October 3, 2008 entitled Guideline Memorandum Concerning St. George Warehouse is an important GC Memo to be aware of. It spans 11 pages and is intended to provide guidance concerning  St. George Warehouse, 351 NLRB No. 42 (September 2007).

In St. George Warehouse, supra, the Board changed the burden of proof regarding the long standing principle that no backpay is owed during periods in which a discriminatee does not make reasonable efforts to seek and hold interim employment.   After St. George Warehouse, the employer no longer has the affirmative burden with respect to this issue. Rather, once the employer demonstrates that equivalent jobs were available in the relevant geographic area, the burden is on the General Counsel to establishe that the discriminatee sought interim employment.  This memo describes how the Regions should prepare for and litigate these issues in compliance proceedings.  It is specific concerning the types of evidence that should be developed and litigation strategies for compliance proceedings.

Mitchell H. Rubinstein