The Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB) are independent agencies within the Executive Branch of government, and no American President until President Biden has fired the General Counsel of these agencies during their term of office. Since the firing of the NLRB General Counsel, respondents in NLRB cases have challenged the NLRB's prosecutorial power. Employers will argue that any action the new NLRB General Counsel takes before the prior General Counsel's term would have ended in November, is unenforceable. A number of trade associations and at least four GOP Senators led by Sen. Rand Paul sent the President a letter on February 19, 2021 calling the NLRB General Counsel's termination "nakedly political" and reminiscent of former President Nixon's firing of Watergate special prosecutor Archibald Cox in 1973, a move that became popularly known as the "Saturday night massacre." Republicans should maintain a majority on the EEOC Commission through July 20, 2022, when GOP Commissioner Janet Dhillon's term expires, at which point the Democrats are expected to assume control once a nominee can be confirmed.

This is part of our April 2021 Newsletter.

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