In a welcome return to practical enforcement, Acting NLRB General Counsel William Cowen’s latest memo (GC 25-06) signals a strategic pivot in the agency’s pursuit of remedies through settlement agreements. And let’s be honest, it’s a pivot that employers and labor practitioners have been hoping for.
Here’s the TL;DR: While remedies remain on the table, regions are told to stop overreaching and prioritize efficiency. This isn’t about going soft; it’s about staying focused, a necessary goal for an agency with a massive case backlog and fewer resources going forward.
What’s Out?
Cowen rescinded earlier guidance that pushed for reflexive inclusion of nonmonetary or novel remedies in settlements. Under the new memo:
- Nonstandard remedies (like forced apologies or letters of explanation) should only be pursued in widespread, egregious, or severe cases — not as a matter of routine.
- Regions should no longer treat settlement agreements as Trojan horses for creative enforcement.
What’s In?
- Discretion is back. Regional Directors can craft case-by-case solutions without being boxed in by prescriptive checklists from HQ.
- Efficiency matters. The memo re-centers settlements as a primary tool for resolving unfair labor practices with a reminder that 96% of meritorious cases are settled.
- Remedial enthusiasm ≠ effectiveness. The message is clear: don’t let the perfect be the enemy of the timely and the practical.
On Make-Whole Relief
Cowen isn’t throwing out back pay, far from it. Regions should still seek full compensation for actual losses, but they now have the flexibility to settle for less than 100% when it makes strategic sense (as long as it’s not below 80% without sign-off from D.C.).
Think: risk of litigation, shaky evidence, or the value of peace in a contentious shop.
What About Thryv?
Ah, yes — the Board’s infamous 2022 decision in Thryv, Inc. created a new make-whole standard by introducing “direct or foreseeable pecuniary harms.” What is Cowen’s updated take? It’s a doctrinal mess.
The Board wants to avoid using tort law terms like “foreseeable” and “consequential damages” while still invoking… well, exactly that. The memo subtly (but clearly) questions the utility of the Thryv standard, instead urging regions to apply a more workable threshold: only pursue harms with a clear causal link to the ULP.
What’s This Mean for Employers?
This is a shift toward balance. Settlements aren’t going away — and they shouldn’t — but Cowen’s memo reels in aggressive remedial tactics, which could extend to include arguably incidental expenses and turned every ULP into a creative writing exercise.
Smart employers should:
✅ Continue to take ULP allegations seriously
✅ Look for early, reasonable off-ramps through settlement
✅ Push back (respectfully) on excessive or novel remedies that aren’t grounded in precedent
✅ Stay attuned to how Thryv is (or isn’t) applied in your region
This memo may not have made headlines, but it significantly recalibrates the Board’s enforcement strategy. One that gives the process and all parties involved a better shot at fairness, clarity, and closure.
