NLRB: Don’t stick workers with tax bill on lump sum back pay

WASHINGTON Reviving a decision it made when it lacked enough legal members to rule on worker-boss disputes, the National Labor Relations Board again ruled that workers should not get stuck with the tax bill on back pay lump sums they win when triumphing against management labor law-breaking.

In an August 8 ruling involving two Tucson, Arizona, workers and their employer – a tortilla plant-the board reinstated the NLRB’s 2012 ruling that ordered labor law-breaking employers to reimburse the workers for extra state and federal income taxes they owe on those payouts.

And it reinstated another 2012 ruling, saying employers must report the back pay awards to the Social Security Administration, split into the quarters of the year when the workers would have earned the pay, so the workers can get proper Social Security credit.

“A back pay order is a reparation order designed to vindicate the public policy of the statute by making employees whole for losses suffered on account of an unfair labor practice,” NLRB Chairman Mark Gaston Pearce and members Harry Johnson and Nancy Schiffer wrote.

“Accordingly, the board has revised and updated its remedial policies from time to time to ensure victims of unlawful conduct are actually made whole.”

The board’s 2012 pro-worker rulings on Social Security and income taxes got tossed out – along with dozens of other decisions – earlier this year. That’s when the U.S. Supreme Court ruled the board then lacked a quorum to decide anything, because of illegal “recess appointees” by President Obama.

The board, which now has a full five legal members, used the case pitting workers Mariella Soto and Anahi Figueroa against their employer, Tortillas Don Chavas, a Tucson tortilla manufacturer, to reinstate its two prior rulings.

Management fired Soto and Figueroa in 2011, through “constructive discharges” – the legal term describing cases where employers make conditions so bad for workers they have to quit. Managers changed both workers to the night shift, knowing that doing so would prevent them from arranging for childcare.

Management fired Soto for complaining about sexual harassment on the job. It fired Figueroa for walking out over hazardous working conditions, including the overheated plant in the summer. The board ordered the tortilla plant to rehire both, with back pay.

But the key part of the ruling is the board’s statement that orders companies to pay Social Security and compensate the workers for the extra income tax liability they face for the back pay. Ordering firms to pay “effectuates the policies of ” the National Labor Relations Act.

 “Accordingly, in this case and in all pending and future cases in which we find a violation of the act that results in make-whole relief, we will continue routinely to require the law-breaking company to send documents to the Social Security Administration” crediting the injured workers with earnings they would have had – and later got in the lump sum back pay – absent the employer’s labor law-breaking.

And the board will require offending companies “to reimburse the discriminatee(s) for any additional federal and state income taxes the discriminatee(s) may owe as a consequence of receiving a lump-sum back pay award in a calendar year other than the year in which the income would have been earned had the act not been violated.”

Without the reimbursements from the employers for the higher state and federal taxes in the years they get back pay awards, the workers were effectively stuck with the tax bills. Those workers “may be pushed into a higher tax bracket, and consequently may owe more in income taxes than if she had received her wages when they were or would have been earned. The result is the discriminatee is disadvantaged a second time,” the board said.

“The purpose of our tax compensation remedy, like that of the Social Security reporting requirement, is to ensure an employee who receives lump-sum back pay rather than regular income is truly made whole.”

Image: NLRB Facebook page.




Mark Gruenberg
Mark Gruenberg

Mark Gruenberg is head of the Washington, D.C., bureau of People's World. He is also the editor of Press Associates Inc. (PAI), a union news service in Washington, D.C. that he has headed since 1999. Previously, he worked as Washington correspondent for the Ottaway News Service, as Port Jervis bureau chief for the Middletown, NY Times Herald Record, and as a researcher and writer for Congressional Quarterly. Mark obtained his BA in public policy from the University of Chicago and worked as the University of Chicago correspondent for the Chicago Daily News.