Employment law pop quiz #18 – Firing NLRB's General Counsel

Can the incoming President fire the NLRB's General Counsel?

Yes, indeed.

President Biden fired the Republican GC on his first day in office.
Federal Circuit Court decisions held this was perfectly legal.

So, I expect President Trump will fire the current Democrat General Counsel—Jennifer A. Abruzzo. Then he can appoint an acting GC of his own choosing and nominate a permanent GC, who will need the Senate's approval.

This will change what happens at the NLRB. The General Counsel is independent from the Board, and decides which cases actually get prosecuted.

The President also can (and I think will) appoint a new Board Chairman. That will be the sole Republican Member—Marvin Kaplan.

In contrast, the statute says Board Members can be fired "upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause." This is being challenged in the courts, with the argument that—under the separation of powers doctrine—the President has to be able to fire them at will. We are a long way from a ruling from the Supreme Court on that issue.

Your results may vary. If you have this issue, consult a good employment lawyer.
(Not me, I'm an arbitrator.)

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