1. No NRLA Protection for Union ‘Salts’
Employers confronted with a salting campaign can lawfully refuse to hire union-affiliated job applicants for any number of legitimate, nondiscriminatory reasons. Applicants may also be rejected if they do not intend to genuinely seek employment.
Employers retain the ultimate burden of proof in showing a lack of diligence on the employee’s part in looking for work. To prove an employee’s failure to mitigate back-pay damages, an employer must show that substantially equivalent jobs were available in the relevant geographic area during the relevant period.
By James E. Hall, Mark T. Kobata and Marty Denis Comments 0 | Recommend 0
he National Labor Relations Board on October 3 reaffirmed that when
litigating whether illegally discharged workers conducted a reasonable search
for work, an employer must demonstrate that substantially equivalent jobs were
available in the relevant geographic area.
In 2007, the NLRB for the first time placed on its general
counsel the burden of rebutting an employer’s evidence that the worker failed to
mitigate back-pay damages, by producing competent evidence that the employee
took reasonable steps to seek those jobs. St. George Warehouse, 351 N.L.R.B.
No. 42, 183 LRRM 1235 (2007); 196 DLR A-6 (10/11/07).
The NLRB general counsel’s office last month explained that its attorneys bear
the initial burden of proving the amount of gross back pay the worker would have
earned had he or she not been illegally discharged. The employer then has the
opportunity to prove an affirmative defense to reduce the amount of back pay
owed, which includes arguing that the worker did not make reasonable efforts to
mitigate damages by finding interim work. The general counsel explained that its
attorneys should be prepared to rebut the employer’s evidence by showing that
"differences in specifics, such as location, type of work, rate of pay and other
working conditions may demonstrate that the employer’s proffered evidence does
not establish that the jobs were substantially equivalent." Guideline Memorandum
Concerning St. George Warehouse, Office of Gen. Counsel, GC 09-01 (10/3/08).
Impact: Employers retain the ultimate burden of proof in showing a lack of
diligence on the employee’s part in looking for work. To prove an employee’s
failure to mitigate back-pay damages, an employer must show that substantially
equivalent jobs were available in the relevant geographic area during the
relevant period. When conducting an investigation regarding the availability of
jobs, employers are encouraged to obtain data from the Labor Department’s Bureau
of Labor Statistics and to interview state and local government officials about
the availability of employment for those with similar skills and experience.
Workforce Management, November 3, 2008, p. 8
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James E. Hall, Mark T. Kobata and Marty Denis are partners with the law firm
of Barlow, Kobata and Denis, with offices in Los Angeles and Chicago. E-mail editors@workforcecom to comment.
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he National Labor Relations Board on October 3 reaffirmed that when
litigating whether illegally discharged workers conducted a reasonable search
for work, an employer must demonstrate that substantially equivalent jobs were
available in the relevant geographic area. 
