When an arbitrator orders reinstatement “with full back pay,” it’s tempting to declare victory, shake hands, and move on. The employee gets their job back; the employer closes the file; the union or plaintiff’s counsel can report a win. By the text of the statute, perhaps, justice has been done. But anyone who has lived through a reinstatement knows that is only the beginning.

This article addresses what comes next by drawing on recent federal “make whole” developments. Although Idaho arbitrations, civil rights cases, and public sector disputes are not governed by the National Labor Relations Act (NLRA), federal labor remedies are frequently cited by Idaho decision makers and offer a structured way to identify the full range of harms that follow a termination. Using that framework, together with Idaho and general employment law practice, this article presents a practical post reinstatement “make whole” checklist for both employee side and management side counsel. In practice, by the time of a reinstatement order’s entry, months, or sometimes years, have passed. Health insurance lapsed. Retirement contributions stopped. Savings were drained. Cars were repossessed, credit scores tanked, kids were pulled out of daycare, and professional licenses or certifications expired. Simply cutting a back-paycheck and turning the badge back on does not really make the worker whole.

In recent years, the National Labor Relations Board (NLRB) and its General Counsel have pressed the “make-whole” remedy beyond wages and benefits, aiming to cover the full range of financial harms that follow an unlawful discharge. Administrations change and priorities shift, but certain remedial ideas take hold. Over time they work their way into court decisions and everyday practice, becoming doctrine rather than policy.

Section 10(c) of the National Labor Relations Act (NLRA) already authorizes “affirmative action including reinstatement of employees with or without back pay” to effectuate the Act’s policies.^[i] Former NLRB General Counsel Jennifer Abruzzo’s Memorandums GC 21‑06 and GC 24-04, Seeking Full Remedies & Securing Full Remedies for All Victims of Unlawful Conduct^[ii], and the Board’s decision in Thryv, Inc.^[iii] built on that authority by expressly embracing compensation for “direct or foreseeable” pecuniary harms, not just lost pay.

Employers also have their own stake in getting reinstatement right. If they mishandle benefits, records, or the work environment, they invite new grievances, unfair labor practice charges, or fresh lawsuits. Make-whole relief is not only remedial; it is risk management. The more carefully an employer handles the return-to-work process, the less likely it is to find itself back in litigation. No one grabs the hot stove twice if they can help it.

The Expanding Concept of “Make Whole” Relief

For decades, the standard labor‑law remedy for an unlawful discharge was straightforward: reinstatement plus back pay, offset by interim earnings and mitigated by the employee’s duty to seek work. “Make whole” meant restoring the paycheck, nothing more.

GC Memorandum 21‑06 challenged that narrow focus. In that memo, Abruzzo instructed NLRB Regions to pursue the “full panoply” of remedies necessary to restore victims of unfair labor practices “as nearly as possible to the status quo” they would have enjoyed but for the unlawful conduct. That included not only traditional back pay and reinstatement, but also:

• Consequential damages for economic losses beyond wages, such as uncovered medical bills, credit‑card late fees, or the loss of a home or car tied to the unlawful termination;
• Front pay in lieu of reinstatement when returning to the job is impracticable; and
• Creative non‑monetary remedies (such as training, notice readings, and access rights) aimed at repairing the workplace going forward.

The Board’s 2022 decision in Thryv, Inc. took a similar step on the adjudicative side. There, the Board held that its standard make‑whole order must compensate employees for “all direct or foreseeable pecuniary harms” caused by the unfair labor practice, not just traditional back pay and benefits.

Examples the Board and commentators have identified include: out‑of‑pocket medical expenses after the loss of health insurance; penalties and interest on credit cards or loans when the employee could not make payments; transportation and relocation costs; and other reasonably predictable financial losses flowing from the unlawful discharge.

The Board’s effort to push remedies in this direction has generated a lively appellate battle. The Fifth Circuit has rejected the idea that the NLRA authorizes broad consequential damages, while other circuits have been more receptive, namely our Ninth Circuit.[iv] At the time of this writing, the scope of the Board’s authority remains contested, and a Supreme Court review is a live possibility.

The Ninth Circuit’s decision in North Mountain Foothills Apartments shows the federal legal landscape. There, the employer owned and operated a 194-unit apartment complex in Phoenix. It hired a new maintenance technician at an hourly rate, plus a housing subsidy. Within days, the new hire talked with co-workers about his pay and poor conditions at the complex, including cockroaches. Management interrogated him about those conversations, told him not to discuss his wages or pest problems, and then fired him on his fourth day. The Board found multiple Section 8(a)(1) violations, and ordered reinstatement with make-whole relief for lost earnings and benefits. The Ninth Circuit enforced the order, and rejected challenges premised upon Article II, the Seventh Amendment, and due process, holding that Thryv-style “direct and foreseeable” pecuniary harms remain equitable, status-quo remedies that do not trigger a jury-trial right.

What the Abruzzo Memo & Recent Decisions Offer to Non‑NLRB Practitioners

GC 21‑06 is not binding authority; however, it clearly provides an unusually concrete catalog of the ways a worker’s economic life can be disrupted. North Mountain Foothills provides evidence that that made-whole relief will continue to receive expansive interpretation, and that fights are perhaps best had on reasonable value, not the courts authority to order the payment of such. The Memo offers three key takeaways for practitioners.

First, it treats “make-whole” as a factual inquiry, not a formula. Think, “What did this person actually lose because of what happened?” Flowing from there, it also embraces treating consequential harms in a manner like negligence and contract litigation, encouraging pursuit of monetary relief for economic harms that are a “direct and foreseeable,” such as medical expenses triggered by a loss of insurance, or fees and penalties tied to lost income. Third, it normalizes nontraditional remedies. In addition to money, the memo promotes remedies like training and public notice readings that address workplace dynamics.

Categories of “Make Whole” Losses to Consider

What follows is a practical checklist drawn from GC 21-06, Thryv, North Mountain Foothills, and Macy’s.[v]

1. Back Pay and Benefits (The Core Remedy)

This is the foundation in Idaho, per Smith v. Glenns Ferry Highway District[vi]: wages and benefits the employee would have earned but for the discharge, less interim earnings and, sometimes, increased by interest. Routine disputes over mitigation, overtime, shift differentials, and tax consequences still matter, and in Idaho they intersect with questions about the right to a jury on back and front pay.

Key questions:

• What is the proper back-pay period?
• How should overtime, premiums, or step increases be handled?
• Is interest available, and at what rate?

2. Health Insurance and Medical Expenses

Loss of health coverage is one of the most predictable harms following discharge. GC 21-06 and Thryv identify unreimbursed medical bills, COBRA or marketplace premiums, and insurance-related penalties as classic “direct and foreseeable pecuniary harms.”

Counsel should ask:

• Did the employee incur medical expenses that would have been covered?
• Were COBRA or replacement-coverage premiums paid?
• Did coverage gaps increase later premiums or generate penalties?

These amounts may be recoverable either as consequential damages or as part of the back-pay make-whole calculation.

3. Retirement and Other Long-Term Benefits

A break in service can mean lost pension credits, missed defined-contribution employer payments, and disruption of vesting schedules. If the employee tapped retirement savings to survive, tax penalties and lost growth follow.

Smith tells the practitioner that “benefits and other remuneration” are recoverable where they flow from the unlawful act.

Checklist items:

• Were missed pension credits restored?
• Have employer contributions been made for the interim period?
• Did the employee incur penalties for withdrawals?

4. Housing, Transportation, and Other Large Financial Consequences

GC 21-06 expressly cites the “loss of a home or car” as harms that may be directly tied to an unlawful discharge. Tribunals vary in their willingness to award such damages, but they should be identified early.

Possible items:

• Costs of replacing a repossessed vehicle or securing new housing.
• Lease-break fees, eviction-related charges, or utility-reconnection deposits.
• Other large expenses traceable to income loss.

Even if not awarded, they often influence settlement or shape non-monetary terms.

5. Credit, Debt, and Financial Fees

Thryv and its progeny repeatedly reference late fees, overdraft charges, and elevated interest as foreseeable consequences of sudden income loss.

Consider:

• Late fees and interest on credit cards, car loans, or student loans.
• Overdraft charges and returned-check fees.
• Payday-loan, consolidation-loan, or high-interest stopgap borrowing.

From the employer’s side, these items raise strong causation and foreseeability arguments; from the employee’s side, documentation is essential.

6. Job Search, Relocation, and Recertification Costs

Job-search costs traditionally relate to mitigation. GC 21-06 encourages viewing them as additional pecuniary harms where they were reasonably incurred due to discharge.

Assess:

• Relocation expenses for interim employment.
• Licensing, certification, or recertification fees.
• Training or education necessary only because of the job loss.

These costs can support either reimbursement or lump-sum resolution.

7. Seniority, Step Placement, and Promotion Opportunities

Reinstatement awards often require no loss of seniority, but the practical details matter. Continuous service affects salary steps, accrual rates, and eligibility for bids or promotions.

Checklist:

• Are sick leave, vacation, and other accruals restored?
• Can lost promotional or bidding opportunities be addressed?

These adjustments may prove low-cost, but high-value.

8. Workplace Reintegration and Non-Monetary Remedies

GC 21-06 highlights workplace-repair tools—notice readings, training, record correction—that translate well to reinstatement.

Counsel should consider:

• Anti-retaliation and non-disparagement provisions covering supervisors and co-workers.
• Training for management on standards such as just cause or anti-retaliation.
• Clear communication that reinstatement is required and retaliation is prohibited.
• Removal or sealing of termination records where permissible.

These measures can determine whether the reinstatement succeeds or turns into the next dispute.

9. Front Pay When Reinstatement Is Not Feasible

Reinstatement is not always workable. Positions change, workplaces fracture, and tribunals sometimes decline to order return-to-work. There, front pay substitutes for reinstatement.

Smith treats front pay as a legal remedy in Idaho, emphasizing the need for evidence on future wages and benefits. Even where reinstatement is ordered, front pay can bridge the gap between the award and the actual return date or compensate when a “same position” no longer exists.

Conclusion

Reinstatement is never just a legal remedy. It is a human moment, and often an awkward one. The employee returns to a place that once pushed them out; the employer welcomes back someone it chose to remove. That discomfort is real and ignoring it only invites new conflict. A careful, structured make-whole approach gives both sides a way to move forward with clarity, dignity, and far less friction.

Samuel J. Fenton leads the employment practice group at WHC Attorneys and serves as a member at large on the Idaho State Bar’s Labor & Employment Law Section. A Gonzaga Law graduate (2022, Summa Cum Laude), his practice also includes commercial litigation and advising construction professionals.

[i] National Labor Relations Act § 10(c), 29 U.S.C. § 160(c).

[ii] Memorandum from Jennifer A. Abruzzo, Gen. Counsel, NLRB, to All Reg’l Dirs., Officers‑in‑Charge, and Resident Officers, GC 21‑06, Seeking Full Remedies (Sept. 8, 2021) https://nlrbresearch.com/pdfs/09031d458353f6b9.pdf; Memorandum from Jennifer A. Abruzzo, Gen. Counsel, NLRB, to All Reg’l Dirs., Officers‑in‑Charge, and Resident Officers, GC 24‑04, Seeking Full Remedies for All Victims of Unlawful Conduct (Apr. 8, 2024) https://www.nlrb.gov/guidance/memos-research/general-counsel-memos.

[iii] Thryv, Inc., 372 NLRB No. 22 (Dec. 13, 2022).

[iv] NLRB v. N. Mountain Foothills Apartments, LLC, No. 24-2223, (9th Cir. Oct. 28, 2025).

[v] Macy’s.  Inc. V. National Labor Relations Board, No. 23-150 (9th Cir. Jan. 21, 2025).

[vi] Smith v. Glenns Ferry Highway District, 166 Idaho 683 (2020).