Employment / 1 min read
Under federal law, most agencies are run by a Commission comprised of members appointed at staggered intervals so that both Democratic and Republican presidents can appoint nominees. The members serve a fixed term, often five years, and are confirmed by the Senate. The Commission must have a quorum (simple majority) to initiate formal rulemakings and cannot issue, modify, or revoke formal guidance.
Two key governmental agencies are without a quorum following the President’s termination of multiple Commission members: the Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB). The EEOC’s role is to enforce the country’s antidiscrimination laws. The NLRB oversees certain other workers’ rights, including the rights to collectively bargain and unionize.
The Commissions cannot officially change the guidance and policies of the EEOC and NLRB until they have a quorum. As a result, guidance from these agencies remains effectively at a standstill. However, many of the Administration’s Executive Orders directly or indirectly change the employment policies that will be enforced by these agencies. For example, the NLRB’s acting general counsel issued a memorandum rescinding over a dozen policy memoranda by his predecessors, but the new memoranda do not set policy and are nonbinding at this time.
The primary executive orders impacting the EEOC’s enforcement actions are those involving diversity initiatives. It is unclear how broad the scope of those executive orders will be for private employers until further guidance is issued by the EEOC, which could take months.