Unprecedented Moves: Early Employment and Labor Changes Following President Trump’s Inauguration

NLRB: Termination of the General Counsel, Plus a Member of the Board

On January 27, 2025, as we predicted, President Trump fired the Biden-appointed general counsel of the National Labor Relations Board (“NLRB” or “Board”), Jennifer Abruzzo. However, in an unprecedented move, President Trump also removed Gwynne Wilcox, a Democratic member of the Board. Wilcox’s term was not due to end until August 2028. President Trump’s removal of Wilcox was unexpected, as the authority to remove a Board member under the National Labor Relations Act (“NLRA”) is limited to instances of negligence of duty or malfeasance, which have not been alleged. Wilcox has already spoken out about her intent to explore a challenge to the legality of her removal.

Because the Board had an existing vacancy prior the removal of Wilcox, it now has just two members — one Republican member (Chair Marvin Kaplan) and one Democratic member (David Prouty). Until the Board reaches a quorum of three members, it lacks authority to issue decisions on any pending cases or reverse prior Board decisions. However, routine operations in the regional offices should not be impacted by the current Board size.

EEOC: Termination of the General Counsel, Plus Two Commissioners

It was expected that President Trump would ask Biden-appointed Equal Employment Opportunity Commission (“EEOC” or “Commission”) Commissioner Charlotte Burrows to step down as Chair and appoint Republican Commissioner Andrea Lucas to serve as Acting Chair of the EEOC. But, in another unprecedented move, President Trump went a step further, actually removing Commissioner Burrows, as well as the other Democratic Commissioner, Jocelyn Samuels. This leaves the five-member Commission, which already had one vacancy, with just two sitting members — Acting Chair Lucas and Commissioner Kolpana Katagal, a Democrat.

The EEOC is statutorily structured such that no more than three individuals from the same political party can serve on the five-member commission. Commissioners historically serve their full five-year staggered terms at the independent agency. Based on past practice, the EEOC was not expected to have a Republican majority until Commissioner Samuels’ term expired in 2026 (Commissioner Burrows term was scheduled to expire in 2028). With the removals, President Trump looks to acquire that majority sooner. However, both Commissioners have expressed their intent to explore a challenge to the legality of their removal. Unlike the NLRA, Title VII of the Civil Rights Act of 1964 does not expressly outline removal requirements with respect to Commissioners; however, historically it has been understood that such removals would require cause.

With the removal of Commissioners Burrows and Samuels, in addition to the existing vacancy, the two-member Commission is left without the requisite three-member quorum. Until the EEOC has the necessary quorum, it could be limited in its ability to implement immediate policy shifts, as it will be constrained in its ability to initiate new rulemaking or modify or revoke existing guidance and cannot approve new litigation. However, it can proceed with its regular operations, routine investigations and pending litigation absent a quorum. Further, Acting Chair Lucas has the authority to issue and rescind technical assistance documents without approval of the Commission.

President Trump also fired the General Counsel of the EEOC, Karla Gilbride — whose term was scheduled to end in 2027 — but this did not come as a surprise.

During this time of transition, we will continue to monitor the status of potential legal challenges to these unprecedented Board member and Commissioner dismissals, as well as any moves to appoint new members or policy shifts within these two agencies.