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ARTICLE · 27 NOVEMBER 2025

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

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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...

United StatesEmployment and HR
Ethan Picone
Ethan Picone
Shirley S. Lou-Magnuson
Shirley S. Lou-Magnuson
Joseph Q. Ridgeway
Joseph Q. Ridgeway
Brian D. Pedrow
Brian D. Pedrow
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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

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