Trump Firings Leave Independent Panels in Limbo, Legal Turmoil

President Donald Trump ousting key members of independent panels governing labor and antidiscrimination laws will kneecap the agencies’ powers and potentially taint the legitimacy of future decisions, attorneys and legal scholars say.

Both the National Labor Relations Board and the Equal Employment Opportunity Commission are now without a quorum of members after a series of terminations. Trump fired Democratic NLRB Member Wilcox and General Counsel Jennifer Abruzzo late Jan. 27. Over the course of the next day, news broke that former EEOC Commissioner Jocelyn Samuels, former Chair Charlotte Burrows, and general counsel Karla Gilbride were also fired.

While both entities have experienced periods without a quorum of members in the past, the move is likely to draw novel legal action. Moreover, during this time the NLRB and EEOC will be largely unable to take actions that are required to enforce and adjudicate the laws governing worker protections.

In a statement Tuesday, Wilcox called her termination “unprecedented and illegal” and said she would pursue all legal avenues to challenge her ouster. The two former commission members also said they were exploring legal options, with Burrows already retaining counsel.

The White House didn’t immediately respond to requests for comment.

Quorum Requirement, Challenges

The NLRB hasn’t lacked a quorum since 2007 when Democratic Chair Wilma Liebman and Republican Member Peter Schaumber were the lone members for over two years. They issued about 600 decisions until the US Supreme Court held in its 2010 New Process Steel decision that two members couldn’t constitute a quorum.

Without it, the board can’t issue decisions on unfair labor practice cases or hear reviews of elections cases.

New Process Steel only challenged the board’s decision-making, however, so the impact on other board tasks like regulation-making and 10(j) injunctions remains untested in court.

In New Process Steel, the board argued that it only issued decisions in non-controversial cases, and that a third member wouldn’t have changed the outcome of any case. But the high court disagreed, saying that a third member could’ve influenced the decision through debate.

Liebman said in an interview Tuesday that Wilcox’s firing could open the door for future litigation against the board even if quorum is reached. Decisions from a Trump board could come under fire if the courts rule Wilcox’s termination is unlawful.

“The concept is that the presence of another person could make a difference in the deliberations and that could effect the outcome,” she said. “This arguably is the other side of that, pending the legality of her termination. Any decisions issued without her would be illegitimate or tainted.”

‘Paralyzed’ EEOC

The EEOC has been left without a quorum more recently than the NLRB. Republican senators blocked confirmation of a Democratic nominee in 2019, and subsequently delayed confirming two Republicans.

But the firings render the EEOC “basically paralyzed,” said David Lopez, a Rutgers Law School Professor and former commission general counsel.

The EEOC requires three members for a quorum, as written into Title VII of the 1964 Civil Rights Act. Without it, the commission can’t take any action that requires a vote, meaning the agency is barred from issuing new regulations or guidance, revoking existing ones, and filing certain cases.

“It certainly impedes the daily work that doesn’t necessarily implicate the two or three kinds of more ideological driven issues that seem to be driving these actions,” Lopez said. The EEOC will continue its role in ongoing litigation, he added.

Acting Chair Andrea Lucas said in a statement late Tuesday that the agency is removing options for nonbinary gender markers from bias charge intakes in line with Trump’s executive order recognizing only two sexes.

She also called for the rescission of agency guidance for workplace gender identity protections, but acknowledged she can’t unilaterally do that without a commission vote.

The Trump administration is “probably comfortable with the notion of an EEOC that lacks the ability to function,” Adam Pulver, an attorney at Public Citizen Litigation Group, said in an email.

Although the terminations will “delay the weaponization of the Commission to serve extreme views,” it’s a shorter wait than Republicans would have had to push forward their agenda if Samuels and Burrows served out their terms, he said.

The time left on Samuels’ and Burrows’ terms would have given Democrats a majority through 2026. The Republican-controlled Senate can now swiftly confirm a Trump appointee to the open Republican seat vacated by former Commissioner Keith Sonderling, giving Republicans a 2-1 majority.

A ‘Mixed Bag’

The NLRB will sit frozen until Trump nominates new members and the Senate confirms them, joining another agency that governs union disputes—the Federal Labor Relations Authority—in limbo.

The FLRA, which polices labor law for federal employees, has operated without a general counsel since 2017, forcing unions to use workarounds to get cases before the board.

Private companies and employees don’t have such workarounds, however, so cases could sit dormant indefinitely.

The freeze could also balloon case backlogs at an agency that already struggles with processing allegations in a timely manner, a delay that can backfire on companies.

In wrongful termination cases, back pay is calculated starting at the moment of discharge. If the resolution time is stretched, then back pay can quickly rise, said David Pryzbylski, an attorney for Barnes & Thornburg LLP, calling the situation “a mixed bag” for businesses.

Employers before the EEOC are in a similar boat. Any actions that the commission approved should be able to continue, but companies “may raise challenges, depending on the specifics,” Pulver said.

The agency’s inability to move on much of its litigation because of the absent general counsel or quorum of members will have a “cascading impact,” Lopez said.

“If cases aren’t going to get out, then people don’t devote the resources and time to develop them,” he added.