Make-Whole Or Make-Believe: NLRB "Foreseeable" Damages Creates Circuit Split

• Published date: 27 November 2025
• Subject Matter: Employment and HR, Employee Rights/ Labour Relations
• Law Firm: Ballard Spahr LLP
• Author: Mr Ethan Picone, Shirley S. Lou-Magnuson, Joseph Q. Ridgeway and Brian D. Pedrow

Circuit Split Over Thryv Remedies. On October 20, 2025, the U.S. Court of Appeals for the Ninth Circuit generally upheld expanded make-whole remedies contemplated by the National Labor Relations Board (the "Board") in Thryv, Inc., 372 NLRB No. 22 (2022). But since Halloween this year, both the Fifth and the Sixth Circuits joined the Third Circuit in rejecting Thryv remedies. The Board's expansion of remedies through Thryv'seen by many as practically unbounded and an unlawful exercise of regulatory authority'has added entirely novel remedies to unfair labor practice litigation.

Thryv Introduces New, "Foreseeable" Labor Remedies in 2022. During the 87 years before Thryv, the Board awarded so-called "equitable" remedies in unfair labor practice cases based on its statutory authority in Section 10(c) of the National Labor Relations Act (the "Act"). Section 10(c) provides that the Board shall take "such affirmative action including reinstatement of employees with or without backpay, as will effectuate the policies of this Act." Board remedies have gone beyond reinstatement and backpay over the years, but, until Thryv, monetary awards generally fell under the umbrella of backpay. Traditional remedies have included, among other things, payment of lost employment benefits, medical costs related to lost healthcare coverage, and missed pension premiums.

The Arguments Against Thryv. Critics of Thryv argue that Section 10(c) limits the Board to award only equitable remedies'not legal remedies. Thus, the...