'Thryving' Or Surviving: NLRB's Remedial Powers Take Another Hit

On Nov. 5, 2025, the United States Court of Appeals for the Sixth Circuit restricted the National Labor Relations Board's (NLRB) remedial powers in its opinion in NLRB v. Starbucks Corp. The Sixth Circuit concluded that the Board overstepped its authority when it attempted to require employers to compensate unlawfully terminated employees for any "direct or foreseeable pecuniary harms" resulting from their termination.

The controversy springs from the Board's 2022 ruling in Thryv, Inc., 372 NLRB No. 22, where it expanded make-whole relief. Traditionally, the Board's remedial powers were limited to relief such as reinstatement, back pay, and interest. In Thryv, however, the Board asserted its remedial powers extended to include consequential damages for any other direct or foreseeable harm, which could include a myriad of possible damages. According to the Board, these damages could include things like interest and late fees on credit cards, penalties on early withdrawals from retirement accounts, the loss of a car or home from missed loan or mortgage payments, and even childcare costs.

The Sixth Circuit rejected the Board's attempt to expand its remedial powers to include consequential damages, concluding that it was not consistent with the Board's powers under the National Labor Relations Act. The Sixth Circuit's opinion aligns with recent rulings from the Third and Fifth Circuits, also holding that the Board impermissibly exceeded its remedial powers under the Thryv approach. The Ninth Circuit, however, has taken a different view and upheld the Board's expanded remedies earlier in 2025.

This growing circuit split could mean the issue heads to the U.S. Supreme Court for resolution. Alternatively, a newly composed NLRB could revisit and potentially overrule Thryv. In the meantime, for employers not covered by the Third, Fifth, and Sixth Circuits, the Board's consequential damages approach under Thryv still applies, and you may be on the hook for late credit card payments.

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Colleen Schade
Barnes & Thornburg LLP
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Indianapolis
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