NLRB Revises Policy To Allow Board Settlements To Include Front Pay

A recent memorandum published by the Acting General Counsel of the National Labor Relations Board, "Inclusion of Front Pay in Board Settlements" has revised the NLRB's long-standing policy in Board settlements discouraging the use of front pay as a remedy in lieu of reinstatement in two significant ways:

1. Board settlements may now include front pay, which, if agreed to by the real parties, was previously required to be set forth in a "side letter."
2. Waiver of reinstatement rights must be in writing unless otherwise authorized by the Board's Operations-Management division.

Noting that most settlement agreements involving front pay "are entirely non-Board" – i.e., private – the NLRB's acting general counsel justified the policy change by explaining, "Agency policy should favor Board settlements, not discourage them." The memorandum reiterated, however, that Board "policy favors reinstatement" as it is "generally the best means to remedy the harm to