Matt Fontana Discusses NLRB Shake-Up and Legal Implications With Law360

Labor and employment partner Matt Fontana spoke with Law360 to discuss National Labor Relations Board (NLRB) member Gwynne Wilcox's firing and how it has disabled key functions at the agency. The article discusses how Wilcox sued the president a little over a week after her firing, arguing that NLRB members' protections are constitutional under the U.S. Supreme Court's 1935 ruling in Humphrey's Executor v. U.S., which upheld job protections for members of the similarly structured Federal Trade Commission (FTC).

Wilcox's challenge to her firing "really hinges on the continued viability of Humphrey's Executor," said Fontana. That viability is in question following a series of recent Supreme Court rulings endorsing the president's power to fire officials at other agencies, though those rulings did not consider protections for members of panels like the FTC or NLRB.

"It really goes to this underlying question of whether Congress may limit in some way the president's authority to terminate what I would call putative members of the executive branch," added Fontana.