Labor & Employment Law Daily Wrap Up, LABOR NEWS—Former NLRB Chairman McFerran argues for private enforcement under NLRA, (Dec 16, 2025)

By Brandi O. Brown, J.D.

If things go Trump’s way with Slaughter, McFerran argues that amending the NLRA to include a private right of action could provide a “viable alternative” to a “politicized NLRB.”

Former NLRB Chairman Lauren McFerran, now a Senior Fellow at The Century Foundation, last week provided commentary regarding a potential legislative response to the expected result in Trump v. Slaughter, i.e., that the U.S. Supreme Court will rule in favor of the Trump administration and determine that the President has authority to fire independent agency heads. She suggests that to stave off the impact to workers’ rights anticipated in the event of a politicized NLRB, Congress should amend the National Labor Relations Act to include a private right of action.

NLRB’s impending independence issue. The High Court heard oral argument last week in Slaughter, a case concerning the reach of the President’s power to remove heads of independent federal agencies and implicating the future viability of the Court’s 90-year-old precedent in Humphrey's Executor v. United States, 295 U.S. 602 (1935). In the argument, the Court appeared very likely to find that statutory removal protections for members of the FTC—and, by implication, boards of several other similarly structured federal agencies—unconstitutionally trench on the President’s executive authority.

The likely outcome of Slaughter, McFerran argues, “will be particularly devastating for the National Labor Relations Board (NLRB), the independent agency charged with safeguarding workers’ right to form and join a union and act collectively in the workplace.”

Many argue that the NLRB will no longer be able to effectively safeguard the rights of workers as a result and McFerran likewise contends, “The loss of independence and the intrusion of political favoritism into its day-to-day operations would compromise the agency’s basic functioning, and put workers’ rights in jeopardy.”

Private right of action. The answer to this problem, McFerran asserts, is to amend the NLRA so that it no longer has an exclusive remedial scheme and, instead, allows workers a private right of action. “There are real advantages to this approach,” she argues, including that it is a simple change, doable in a two-page bill, and that it has the potential to provide a quicker remedy for workers. It would also give those workers more control over where their claim is litigated as well, McFerran notes.

McFerran also acknowledges that there are “certainly” possible drawbacks—workers or unions may have limited resources to bring such cases and may be wary of federal courts and there is also a “lack of labor law expertise in the federal judiciary”—but she adds that this could be mitigated by more comprehensive reform, to include creating a new labor court system.

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