Key Takeaways:
- On January 27, 2025, President Donald Trump made sweeping changes to the Equal Employment Opportunity Commission ("EEOC") and National Labor Relations Board ("NLRB"), firing two of the three Democratic members of the five-member EEOC panel and a Democratic NLRB commissioner.
- President Trump's firings of the NLRB and EEOC commissioners are unprecedented, as incoming administrations historically have left members of the independent, bipartisan agencies in place.
- The removal of the EEOC and NLRB commissioners leaves both agencies without the required quorum to conduct business, effectively stalling both agencies' work.
- Employers and employees should expect delays in any anticipated EEOC and NLRB guidance and enforcement actions until President Trump replaces the fired commissioners or any legal challenges to their terminations are resolved.
On January 27, 2025, President Donald Trump made sweeping and unprecedented changes to both the EEOC and NLRB, firing two of the three Democratic members of the EEOC, Commissioners Jocelyn Samuels and Charlotte Burrows, and Democratic NLRB member Gwynne Wilcox. The terminations break with decades of precedent, test President Trump's legal authority to dismiss EEOC and NLRB commissioners at will, and dramatically undercuts the political independence of both agencies.
President Trump's termination of EEOC commissioners long before the expiration of their terms is unprecedented in the EEOC's 60-year history. EEOC commissioners are nominated by the president and confirmed by the Senate, with no more than three coming from the same party. EEOC commissioners normally serve staggered five-year terms. Federal law does not specifically address the removal of EEOC commissioners, but both Samuels and Burrows have stated publicly that they are considering legal challenges to their terminations.
The EEOC terminations also shift the voting majority on the panel from Democratic to Republican. Burrows had been confirmed in 2023 to a third term that was slated to run until late 2028. Samuels' term was scheduled to expire in July 2026. The Democrats expected to have their three-member voting bloc in place until the end of Samuels' term in mid-2026. Instead, President Trump now can nominate three commissioners, two of whom can come from the Republican party. This paves the way for recently named and future Trump appointees to steer the EEOC's policy and litigation agenda.
President Trump's removal of NLRB commissioner Wilcox also breaks with precedent and tests his authority under federal law. The National Labor Relations Act ("NLRA") permits the president to remove NLRB commissioners upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause. The Trump administration has not proffered any specific reason for Wilcox's termination that would constitute a valid cause under the NLRA, but a series of lawsuits have been filed recently challenging the constitutionality of this provision of the NLRA, among others. Wilcox has stated publicly that her firing is illegal, and she intends to challenge her termination in court.
Critically, the terminations of the EEOC and NLRB commissioners stall business at both agencies by leaving them without the required quorum of members to conduct business. Without Samuels and Burrows, the EEOC has only two commissioners: Republican Andrea Lucas who joined the commission in 2020 and was recently appointed by President Trump as acting chair, and Democratic Commissioner Kalpana Kotagal, whose term is set to run until July 2027. One seat has been vacant since 2024 when commissioner Keith Sonderling completed his term. President Trump has since nominated Sonderling to serve as deputy labor secretary. Wilcox's termination reduces the NLRB's five-member board to two members, Democrat David Prouty and Chairman Marvin Kaplan, a Republican. It remains to be seen if President Trump will fire Prouty as well.
During this time without their three-member quorums, the NLRB and EEOC will be largely unable to take actions that are required to enforce and adjudicate the federal laws governing worker protections, including anti-discrimination and unfair labor practice laws. The NLRB cannot issue decisions—though it may continue to process cases short of resolution—and cannot hear reviews of elections cases. Whether the NLRB can continue its other tasks like regulation-making and authorizing 10(j) injunctions is less clear under existing law.
The EEOC is functionally paralyzed until the commissioners are replaced or restored. Title VII requires a three-member quorum for the EEOC to take any action that requires a vote, meaning the agency is barred from issuing new regulations, revoking existing ones, and filing certain cases. President Trump's actions that limit the EEOC's ability to act conflict somewhat with his recent executive orders that demand actions from the agency. For example, Acting Chair Lucas issued a statement that the EEOC would rescind its guidance on workplace gender identity protections, but acknowledged she cannot do so without a commission vote.
While both the NLRB and EEOC have experienced periods without a quorum of members in the past, it is unprecedented for a lack of quorum to result from terminations by an incoming president. These firings are likely to draw novel legal action. The EEOC and NLRB are likely to face significant case backlogs due to the terminations. Employers and employees should expect significant delays in anticipated EEOC and NLRB guidance, initiatives, and enforcement actions until the Trump administration replaces the fired commissioners or any legal challenges to their terminations are resolved.
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