Associate Professor Kulwiec’s  analysis of changes in federal labor agencies – a labor law perspective

Headshot photo of Alexia Kulwiec
Alexia Kulwiec, JD, Associate Professor

There has been a good deal of reaction to the new federal policies announced by the Trump administration. As it pertains to changes to federal labor agencies, some of these actions are in direct violation of federal law.

National Labor Relations Board

On Monday, January 27, 2025, President Trump terminated National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo. The NLRB is the federal agency that enforces the National Labor Relations Act, which was promulgated in 1935. This law protects workers’ rights to organize unions, engage in collective bargaining, and engage in collective activity. It is typical for a new president to terminate the NLRB General Counsel and appoint their own general counsel to be confirmed by the Senate. The Act, however, is clear on the limited circumstances under which board members may be removed, as opposed to the general counsel. Yet, on the same day that Trump terminated the general counsel, he also unlawfully terminated NLRB Board Member Gwynne Wilcox, who was serving a term as a board member scheduled for September 2023 – August 2028. The illegal removal of Wilcox means that the NLRB lacks a quorum,[1] which will disrupt the agency’s ability to decide cases and enforce workers’ rights.

The National Labor Relations Act states that board members shall be appointed for terms of five years each unless the member is chosen to fill an unexpired term.[2] Board members are then eligible for reappointment for additional specific terms on the NLRB.[3] Regarding termination of board members, the Act states, “Any member of the Board may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.”[4]

There has been no indication that the administration’s termination of member Wilcox was for cause, she did not receive a hearing, and her termination therefore violates the National Labor Relations Act. The impact is to create a lack of quorum in board membership, meaning that no decisions can be made at the full NLRB level until a new board member is appointed and confirmed by the Senate. This means that appeals of decisions made by administrative law judges and regional directors cannot currently be decided by the Board. Such unlawful presidential action lacks precedent and oversteps the president’s authority. This is likely designed to diminish the ability of the Board to enforce employees’ right to organize, bargain, and engage in collective action.

Equal Employment Opportunity Commission

Also on January 27, 2025, The President terminated two commissioners and the general counsel of the Equal Employment Opportunities Commission. This is the federal agency that enforces federal laws intended to prohibit discrimination in employment, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.[5] Like the NLRB members, the EEOC commissioners serve set terms that continue under a new presidential administration. Section 705 of the Civil Rights Act mandates that the Commission have five members, not more than three of whom shall be members of the same political party. No language in the Act provides for the removal of EEOC commissioners. After the initial terms set forth in 1964, the law dictates that commissioners serve five-year terms.[6] The statute requires that the Commission have a quorum (an active three members) to conduct its work.[7] The Commission now has only two commissioners, thus lacking a quorum, following the unlawful termination of two commissioners.[8] The EEOC will thus also be limited in conducting the work of the agency.

The U.S. Department of Labor

The Inspector General for the U.S. Department of Labor (DOL) was also unlawfully terminated. The Inspector General Act of 1978 requires the president to communicate “in writing the reasons for [such] removal or transfer” of any Inspector General to both houses of Congress, not later than 30 days before the removal or transfer.[9] Moreover, the more recent Securing Inspector General Independence Act of 2022 requires the writing to include “substantive rationale, including detailed and case specific reasons” for any removal.[10]  These statutory requirements could not have been satisfied, given that the President’s first day in office was January 20, 2025 and he terminated Inspector General Turner on January 24, 2025. The United States Department of Labor enforces a number of laws intended to protect employees. The Fair Labor Standards Act requires overtime pay for work exceeding  40 hours in one week, and the federal minimum wage. The DOL also enforces the Mine Safety and Health Act, the Occupational Safety and Health Act, and the Family Medical Leave Act. The Office of the Inspector General conducts audits to determine the effectiveness and integrity of Department of Labor Programs.[11]

Other attacks on federal workers

The Trump administration has also issued a number of executive orders and directives that change working conditions and weaken protections of the federal workforce. The President issued an executive order that requires the termination of remote work arrangements as soon as practicable.[12] The administration also revoked a previous Biden Administration order that reversed Trump’s previous policy to move certain federal employees to a “Schedule F” classification, stripping them of civil service protections.[13] This means the administration seeks to remove protections for termination of federal workers, among other things. On January 28, 2025, the administration reportedly sent employees a “Deferred Resignation” email offering pay through September 2025 to employees who resign by February 6, an act that is likely without legal authority and unenforceable. Last, the administration reportedly threatened “adverse consequences”  to employees who fail to “report” on co-workers who defy orders to purge diversity, equity, and inclusion efforts from their agencies.[14] This last directive is moving closer to some of the historical tactics employed by autocratic regimes, which used surveillance and citizen reporting to maintain control.[15] The president’s actions raised concerns not only over their legality but the broader implications to the U.S. system of government.

Litigation is likely

Board Member Wilcox has indicated that she will “pursue all legal avenues to challenge” her removal. A Supreme Court case in 1935 established that the Constitution does not provide the president “[unlimited] power of removal,” and that appointees performing quasi-legislative and quasi-judicial functions (which indicates the NLRB) cannot be terminated in violation of the statute creating and governing the agency.[16] There has been some indication that other terminated employees, such as the EEOC commissioners, may also file suit. In any case, the Administration has acted directly in violation of federal statutes. Litigation may ultimately succeed, but in the meantime, the administration’s actions violating federal statutes are damaging the agencies entrusted to protect the rights of workers.

Alexia Kulwiec[17]
Associate Professor
University of Wisconsin-Madison
Feb 3, 2025

 


[1] https://www.nlrb.gov/about-nlrb/who-we-are/the-board

[2] NLRA Section 3(a);  29 U.S.C. § 153 (a).

[3] NLRA Section 4; 29 U.S.C. §154.

[4] NLRA Section 3(a), 29 U.S.C. § 153 (a).

[5] https://www.eeoc.gov/overview

[6] Title VII, Civil Rights Act of 1964, as amended, Section 705 (a), 42 U.S.C. §2000e-4.

[7] Id.

[8] https://www.eeoc.gov/commission. In addition, the new EEOC General Counsel has stated that her priorities “will include rooting out unlawful DEI motivated race and sex discrimination.”  President Appoints Andrea R. Lucas EEOC Acting Chair | U.S. Equal Employment Opportunity Commission

[9] Inspector General Act of 1978, Section 403.

[10] 5 U.S.C. 403 (b).

[11] https://www.oig.dol.gov/about.htm

[12] Executive Order dated January 20, 2025, https://www.whitehouse.gov/presidential-actions/2025/01/return-to-in-person-work/

[13] Executive Order dated January 20, 2025 revoked Executive Order No. 14003 which revoked the Trump EO No. 13957, creating a Schedule F classification of workers not protected by civil service protections. https://www.whitehouse.gov/presidential-actions/2025/01/initial-rescissions-of-harmful-executive-orders-and-actions

[14] Office of Personnel Management Memorandum Dated January 21, 2025 regarding Initial Guidance Regarding DEIA Executive Orders,  Memorandum for Heads and Acting Heads of Departments and Agencies: Initial Guidance Regarding DEIA Executive Orders Erica L. Green and Hamed Aleaziz, Federal workers were given 10 days to report on attempts to ‘disguise’ DEI Programs, New York Times (January 22, 2025),  Trump Administration Updates: Federal Workers Told to Inform on Colleagues Trying to Dodge D.E.I. Crackdown – The New York Times

[15] See The Mechanisms of Total Control in Totalitarian Governments • Sociology Notes by Sociology. Institute

[16] Humphrey’s Executor v. United States, 295 U.S. 602 (1935)(unlawful termination of Humphrey as Federal Trade Commissioner).

[17] The opinions set forth in the analysis are those of the author and may not reflect those of the University of Wisconsin-Madison.