In a 3-1 ruling, the National Labor Relations Board (“Board”) recently revised its back pay formula and radically departed from its traditional remedy for compensating employees who have been unlawfully terminated. The Board’s ruling now supports employees’ rights to recover search-for-work and interim employment expenses, regardless of whether the employees have interim earnings and regardless of the amount in question.

The case involved King Soopers, Inc. who employed the complainant who was a barista at a Starbucks kiosk in a King Soopers grocery store located in Denver, Colorado. The employee had been asked by a store manager to assist with bagging groceries. She refused and questioned whether she should be doing the work, given that she belonged to a different union. The employee was suspended for five days and then terminated for gross misconduct after a meeting with store managers and her union. In its decision, the Board affirmed the finding that King Soopers violated the National Labor Relations Act (“NLRA”), which protects an employees’ right to engage in protected, concerted activity. It found that she was within her rights to question whether the work she was being assigned belonged to a different union.

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