NLRB Decisions Move Us Closer To EFCA-"Lite"

As expected, and as we reported in our last Labor and Employment Alert on the subject, the Employee Free Choice Act (EFCA) is not dead—even though Congress refuses to pass it—because the National Labor Relations Board (NLRB) appears intent on administratively adopting the key provisions of EFCA. For example, increasing the remedies against employers for unfair labor practices was a major component of EFCA. On Oct. 25, the NLRB imposed just such a measure. Specifically, the NLRB held that daily compound interest will be added to back pay and other monetary awards. See Kentucky River Medical Center, 356 NLRB No. 8.

This decision dramatically changes Board precedent. The NLRB has ordered interest on back pay for 50 years. But until now interest has not been compounded—let alone compounded on a daily basis. And unlike typical employment law cases where pre-judgment interest is awarded on a case-by-case basis, the NLRB's new policy applies "categorically wherever a back