President Obama Uses Recess Appointments to Fill NLRB, EEOC Seats

This week President Obama announced that he would make recess appointments to fill vacancies on the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).  The move allows the White House to bypass the Senate confirmation process, which promised to be extremely contentious. 

The appointments will add two Democratic members to the NLRB:  Craig Becker and Mark Pearce.  Both appointees were strongly opposed by Republicans because of their anticipated pro-labor viewpoints.  Becker, a labor law professor, has been associate general counsel for the Service Employees International Union (SEIU) since 1990 and has also served as an AFL-CIO staff counsel since 2004.  Pearce is a partner with the firm of Creighton, Pearce, Johnsen & Giroux in Buffalo, New York, where he represents unions and employees.  President Obama's recess appointments do not include Republican nominee Brian E. Hayes, the Republicans' labor policy director for the Senate Committee on Health, Education, Labor and Pensions, but Hayes' Senate confirmation is not expected to encounter any significant roadblocks. 

The EEOC appointments will bring the agency up to a full compliment of five directors.  The new appointments include: Jacqueline Berrien as EEOC chair, Chai Feldblum and Victoria Lipnic.  Berrien has served as associate director of the NAACP Legal Defense and Educational Fund Inc. (LDF) in New York since 2004 where she has worked on voting rights and political participation issues.  Feldblum, a Georgetown University law professor, played a leading role in drafting the original Americans with Disabilities Act and more recently worked on the ADA Amendments Act.  She has also worked on the proposed Employment Non-Discrimination Act, which would ban employment bias based on sexual orientation or gender identity.  Lipnic is a lawyer with Seyfarth Shaw in Washington, D.C. and served in President George W. Bush's administration as assistant secretary of labor for employment standards from 2002 until 2009.   In addition, EEOC supervisory attorney P. David Lopez will appointed to the post of EEOC general counsel.

What will these appointments mean for employers?  First, expect to see more rule changes.  Both the EEOC and the NLRB have for some time operated without quorums, meaning that the agencies have not been able to take on any controversial cases or make significant rule changes.  Now that they have enough members, expect a flurry of activity from both bodies.  For the NLRB in particular, this may mean reversals of many pro-employer decisions made during the Bush years.  Second, expect both agencies to get a lot more employee-friendly.  President Obama's appointments will appease labor unions and employee advocates who adamantly supported his campaign but until now have not received much in return.  Those groups expect to get a return on their investment, and these appointments will go along way towards making that happen.