1 00:00:00,480 --> 00:00:12,000 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:15,480 --> 00:00:19,880 Speaker 1: And the protests of racial inequality have been heard from Kenosha, 3 00:00:19,920 --> 00:00:24,319 Speaker 1: Wisconsin to Rochester, New York. And the economic impacts of 4 00:00:24,400 --> 00:00:29,400 Speaker 1: COVID nineteen, from job losses to business closures, have disproportionately 5 00:00:29,440 --> 00:00:33,400 Speaker 1: affected Black Americans as much as the virus itself has. 6 00:00:33,800 --> 00:00:37,599 Speaker 1: Even the last resort, the lifeline of bankruptcy, may not 7 00:00:37,680 --> 00:00:41,040 Speaker 1: be equipped to give black debtors a fresh start. My 8 00:00:41,159 --> 00:00:44,400 Speaker 1: guest is Michelle Dickerson, a professor at the University of 9 00:00:44,440 --> 00:00:48,080 Speaker 1: Texas at Austin Law School and an early researcher on 10 00:00:48,240 --> 00:00:52,800 Speaker 1: race and bankruptcy. Michelle, dozens of academic studies show that 11 00:00:52,920 --> 00:00:56,600 Speaker 1: Blacks file for bankruptcy more than any other racial group, 12 00:00:57,000 --> 00:01:02,440 Speaker 1: yet get less permanent relief. Can you explore there are 13 00:01:03,000 --> 00:01:06,399 Speaker 1: a number of reasons why that may be happening. The 14 00:01:06,440 --> 00:01:08,760 Speaker 1: reason I phrase the answer that way is because the 15 00:01:08,840 --> 00:01:14,160 Speaker 1: studies themselves weren't able to pinpoint exactly why that is occurring. 16 00:01:14,800 --> 00:01:19,160 Speaker 1: But one thing that we're seeing painfully during COVID right 17 00:01:19,160 --> 00:01:23,480 Speaker 1: now is that Blacks in this country for a whole 18 00:01:23,520 --> 00:01:28,800 Speaker 1: host of reasons, meaning because of systemic racism, profile worth 19 00:01:29,160 --> 00:01:36,199 Speaker 1: financially lower savings rates, lower household income, higher students loans rates, 20 00:01:36,240 --> 00:01:41,160 Speaker 1: so it's not terribly surprising that blacks would have higher 21 00:01:41,280 --> 00:01:44,240 Speaker 1: filing rates. One of the academic studies a few years 22 00:01:44,240 --> 00:01:51,720 Speaker 1: ago suggested that blacks were being steered into Chapter thirteen, 23 00:01:52,080 --> 00:01:55,480 Speaker 1: which is a bankruptcy plan where you repay your bills 24 00:01:55,600 --> 00:01:58,160 Speaker 1: or like some of your bills over a five year period, 25 00:01:58,600 --> 00:02:02,240 Speaker 1: as opposed to Chapter seven, which is a much quicker 26 00:02:02,280 --> 00:02:06,440 Speaker 1: and easier process, so to the extent that blacks profile 27 00:02:07,080 --> 00:02:11,239 Speaker 1: as more financially fragile, and then they pushed into chapter 28 00:02:11,320 --> 00:02:15,239 Speaker 1: thirteen and told try to repay your bills. That would explain, 29 00:02:15,480 --> 00:02:18,800 Speaker 1: at least for me, why you have more blacks filings 30 00:02:18,800 --> 00:02:22,840 Speaker 1: but fewer blacks actually getting the release that bankruptcy is 31 00:02:22,880 --> 00:02:26,000 Speaker 1: in series supposed to provide. Why do you think blacks 32 00:02:26,000 --> 00:02:30,760 Speaker 1: are being steered to chapter thirteen if chapter seven would 33 00:02:30,800 --> 00:02:34,440 Speaker 1: work better for them? Again, I'll say that the studies 34 00:02:34,520 --> 00:02:38,679 Speaker 1: were not able to say why. Lots of theories, and 35 00:02:38,720 --> 00:02:42,959 Speaker 1: again they're just series. One theory could be that the 36 00:02:43,560 --> 00:02:49,000 Speaker 1: bankruptcy professionals, whether we're talking about lawyers or trustees or judges, 37 00:02:49,600 --> 00:02:54,360 Speaker 1: may have concluded that somehow chapter thirteen is better for 38 00:02:54,520 --> 00:02:58,440 Speaker 1: blacks the chapter seven. That makes no sense because, at 39 00:02:58,480 --> 00:03:00,919 Speaker 1: least for the academic studies, the one that was done 40 00:03:00,919 --> 00:03:04,079 Speaker 1: about five or six years ago actually probably closer to ten. Now, 41 00:03:04,480 --> 00:03:09,200 Speaker 1: it certainly seemed as if whites were being steered away 42 00:03:09,280 --> 00:03:13,520 Speaker 1: from chapter thirteen and two chapter seven, whereas blacks were 43 00:03:13,560 --> 00:03:17,560 Speaker 1: being steered two chapter thirteen and away from chapter seven. 44 00:03:18,200 --> 00:03:22,520 Speaker 1: Whether racial biases are playing a role, we don't know, 45 00:03:22,560 --> 00:03:25,320 Speaker 1: at least we don't know from the studies, but it 46 00:03:25,480 --> 00:03:29,320 Speaker 1: is hard to imagine why it would be deemed better 47 00:03:29,400 --> 00:03:32,920 Speaker 1: for blacks to attempt to repay their bills but not 48 00:03:33,320 --> 00:03:37,120 Speaker 1: for whites to attempt to repay their bills. So, for 49 00:03:37,160 --> 00:03:39,680 Speaker 1: those who are not in the know, would you explain 50 00:03:39,760 --> 00:03:43,440 Speaker 1: a little more about the differences between chapter thirteen and 51 00:03:43,560 --> 00:03:48,120 Speaker 1: chapter seven and why more people actually get out of 52 00:03:48,160 --> 00:03:53,440 Speaker 1: bankruptcy with chapter seven. Yeah, chapter seven is a much 53 00:03:53,680 --> 00:03:57,840 Speaker 1: quicker process to sort of, you know, phrase the colloquially. 54 00:03:57,880 --> 00:04:00,720 Speaker 1: This is not what the bankruptcy Code says, but essentially 55 00:04:00,720 --> 00:04:05,000 Speaker 1: the debtor says, Look, I don't have much property that 56 00:04:05,080 --> 00:04:07,760 Speaker 1: I'm trying to keep. I want this to be a 57 00:04:07,840 --> 00:04:12,680 Speaker 1: quick and simple process. Here's the little property that you 58 00:04:12,760 --> 00:04:15,920 Speaker 1: are allowed to get as creditors that the code says 59 00:04:15,960 --> 00:04:18,479 Speaker 1: I don't get to keep. Take a little amount that 60 00:04:18,560 --> 00:04:23,000 Speaker 1: you're allowed to get creditors, and discharge my debt. So 61 00:04:23,040 --> 00:04:28,800 Speaker 1: it's a quick process. In contrast, Chapter thirteen, even if 62 00:04:28,839 --> 00:04:32,320 Speaker 1: it is successful and the success rates are not great 63 00:04:32,320 --> 00:04:34,719 Speaker 1: in terms of the number of people that actually make 64 00:04:34,800 --> 00:04:37,679 Speaker 1: all of the payments over five year periods. But Chapter 65 00:04:37,760 --> 00:04:41,320 Speaker 1: thirteen can last for up to five years. That's a 66 00:04:41,560 --> 00:04:46,360 Speaker 1: very different process and a very different thing also psychologically, 67 00:04:46,880 --> 00:04:50,440 Speaker 1: because effectively, in Chapter thirteen, you have to be able 68 00:04:50,480 --> 00:04:54,280 Speaker 1: to get I am going to be able to repay 69 00:04:54,320 --> 00:04:58,960 Speaker 1: a certain percentage of my bill over up five year period, 70 00:04:59,760 --> 00:05:02,080 Speaker 1: not knowing that am I going to have the same 71 00:05:02,160 --> 00:05:05,240 Speaker 1: jobs in five years? I mean, imagine if people had 72 00:05:05,360 --> 00:05:10,240 Speaker 1: entered into a Chapter thirteen plan in November of nineteen 73 00:05:10,480 --> 00:05:13,440 Speaker 1: only to have COVID hit and they lose their jobs. Well, 74 00:05:13,440 --> 00:05:16,440 Speaker 1: COVID obviously is sort of the once in a lifetime 75 00:05:16,960 --> 00:05:21,080 Speaker 1: at least we cope economic and health pandemic. But for 76 00:05:21,440 --> 00:05:25,680 Speaker 1: lots of people blacks and other sort of middle income, 77 00:05:25,760 --> 00:05:29,960 Speaker 1: lower income workers, there isn't great stability in terms of 78 00:05:30,000 --> 00:05:33,760 Speaker 1: their employment So the notion that you can commit right 79 00:05:33,800 --> 00:05:36,320 Speaker 1: now that you know you're going to be able to 80 00:05:36,360 --> 00:05:39,919 Speaker 1: make a certain amount of plan payments over the next 81 00:05:39,960 --> 00:05:45,920 Speaker 1: five years is given our current economic climate, an unrealistic expectations. 82 00:05:46,720 --> 00:05:49,839 Speaker 1: There's been a lot of talk about systemic racism in 83 00:05:49,880 --> 00:05:54,160 Speaker 1: the justice system. Is there a racist element in the 84 00:05:54,279 --> 00:06:00,200 Speaker 1: US Bankruptcy Code? Intentional? No, But if you look at 85 00:06:00,240 --> 00:06:04,880 Speaker 1: the way the code is structured for human beings that 86 00:06:04,960 --> 00:06:09,960 Speaker 1: follow for bankruptcy, there are clear biases, and it's just 87 00:06:10,120 --> 00:06:15,039 Speaker 1: so happens that those biases favor a certain profile, which 88 00:06:15,080 --> 00:06:18,240 Speaker 1: I have called in the past the ideal debtor. So, 89 00:06:18,480 --> 00:06:21,440 Speaker 1: if you are a homeowner and you want to be 90 00:06:21,520 --> 00:06:26,000 Speaker 1: able to restructure your debts to keep your home, bankruptcy 91 00:06:26,080 --> 00:06:28,480 Speaker 1: is a good thing. Well, when you look at the 92 00:06:28,560 --> 00:06:33,560 Speaker 1: differences in the home ownership rate for white, blacks and Latinos, 93 00:06:33,560 --> 00:06:37,200 Speaker 1: that favors white because white are more likely to own 94 00:06:37,240 --> 00:06:40,920 Speaker 1: homes than blacks and Latinos. If you look at other 95 00:06:41,040 --> 00:06:44,839 Speaker 1: things like the type of property that you're allowed to keep, 96 00:06:45,600 --> 00:06:49,960 Speaker 1: intangible property like a retirement of pension, well, if you 97 00:06:50,040 --> 00:06:56,080 Speaker 1: look at the pension participation rates, Whites are disproportionately likely 98 00:06:56,160 --> 00:07:00,560 Speaker 1: to have both an employer provided pension and also private 99 00:07:00,600 --> 00:07:05,080 Speaker 1: saving through an i RA. So the code has this 100 00:07:05,240 --> 00:07:09,280 Speaker 1: model of who they think the debtor is that is 101 00:07:09,640 --> 00:07:14,200 Speaker 1: deserving of protection in bankruptcy, and when they created the 102 00:07:14,280 --> 00:07:19,000 Speaker 1: provisions to protect certain types of debtors, a certain debtor 103 00:07:19,200 --> 00:07:22,480 Speaker 1: was in mind, and that debtor is not a typical 104 00:07:22,640 --> 00:07:26,840 Speaker 1: Black or Latino America. There's been a lot of news 105 00:07:26,960 --> 00:07:32,080 Speaker 1: about how COVID nineteen has disproportionately hit the black community 106 00:07:32,080 --> 00:07:35,120 Speaker 1: as far as number of cases, but it's also hit 107 00:07:35,200 --> 00:07:40,440 Speaker 1: the black community more harshly than whites economically. So during 108 00:07:40,440 --> 00:07:45,160 Speaker 1: the pandemic, of black owned business is closed compared to 109 00:07:45,240 --> 00:07:48,520 Speaker 1: seventeen percent of white owned businesses. How do you account 110 00:07:48,520 --> 00:07:52,120 Speaker 1: for that that's a huge difference. Well, one thing, and 111 00:07:52,120 --> 00:07:55,160 Speaker 1: this isn't sort of a bankruptcy results, but one thing 112 00:07:55,200 --> 00:07:58,680 Speaker 1: that happened is when at the very beginning of the 113 00:07:58,680 --> 00:08:02,160 Speaker 1: p P P Blane program, there were lots of problems 114 00:08:02,160 --> 00:08:06,200 Speaker 1: as we all painfully saw a play out, certainly in 115 00:08:06,240 --> 00:08:10,520 Speaker 1: the media. And if you're a small um sort of 116 00:08:10,560 --> 00:08:14,440 Speaker 1: mom and pop are so propriet to black business and 117 00:08:14,560 --> 00:08:18,840 Speaker 1: you don't and you didn't have a longstanding relationship with 118 00:08:18,920 --> 00:08:21,520 Speaker 1: the lender, it was highly unlikely that you were going 119 00:08:21,560 --> 00:08:24,960 Speaker 1: to get one of those loans. They tried to fix 120 00:08:25,160 --> 00:08:28,720 Speaker 1: some of those problems in the second waves of the 121 00:08:28,800 --> 00:08:31,920 Speaker 1: p PP loans, but the simple reality is that if 122 00:08:32,000 --> 00:08:36,280 Speaker 1: you are someone that isn't being favored by a lender, 123 00:08:36,400 --> 00:08:39,400 Speaker 1: and you weren't favored by a lender pre COVID, then 124 00:08:39,400 --> 00:08:41,280 Speaker 1: it was going to be hard for you to get 125 00:08:41,320 --> 00:08:46,199 Speaker 1: those loans. And also, uh, there there are some studies 126 00:08:46,240 --> 00:08:51,240 Speaker 1: out there that indicate that black businesses in general, notwithstanding 127 00:08:51,280 --> 00:08:54,680 Speaker 1: all of the anti discrimination laws, have a harder time 128 00:08:55,080 --> 00:09:01,520 Speaker 1: getting access to capital and particularly to low interest rate blows. 129 00:09:03,440 --> 00:09:07,960 Speaker 1: So I was surprised to learn that personal bankruptcy filings 130 00:09:07,960 --> 00:09:12,040 Speaker 1: have dropped rather than spiked during the pandemic. A big 131 00:09:12,120 --> 00:09:17,280 Speaker 1: drop of is that because people aren't getting to their 132 00:09:17,360 --> 00:09:20,920 Speaker 1: lawyer's offices or is there you know a reason why 133 00:09:21,200 --> 00:09:24,559 Speaker 1: bankruptcy filings would have dropped? Will There would be a 134 00:09:25,480 --> 00:09:28,280 Speaker 1: host of reasons, and again I'm somewhat speculating. First, you 135 00:09:28,320 --> 00:09:31,439 Speaker 1: can't get to your lawyer's office. Second, your lawyer's offices 136 00:09:31,600 --> 00:09:35,920 Speaker 1: or lawyer's offices are backed up um But third, to 137 00:09:36,040 --> 00:09:39,800 Speaker 1: the extent that someone is going to fill for Chapter 138 00:09:39,960 --> 00:09:43,480 Speaker 1: thirteen and they have no income. There's really no reason 139 00:09:43,520 --> 00:09:46,720 Speaker 1: to propose a plan when you know that you don't 140 00:09:46,800 --> 00:09:49,640 Speaker 1: have a job and you won't be able to propose 141 00:09:50,400 --> 00:09:52,760 Speaker 1: any planned payments. So, I mean, it could be a 142 00:09:52,800 --> 00:09:57,160 Speaker 1: sort of a whole range of reasons why people haven't filed. 143 00:09:57,600 --> 00:10:00,920 Speaker 1: It doesn't mean, of course, that there is not economic 144 00:10:01,000 --> 00:10:04,480 Speaker 1: desperation that's out there. Um. And the other thing I 145 00:10:04,480 --> 00:10:07,800 Speaker 1: would add is for some of those folks, that could 146 00:10:07,840 --> 00:10:11,200 Speaker 1: also be that they have filed in the last few 147 00:10:11,280 --> 00:10:14,960 Speaker 1: years and therefore they're not eligible to refile. But it 148 00:10:15,120 --> 00:10:18,360 Speaker 1: is sort of a bit um. It seems to be 149 00:10:18,360 --> 00:10:21,720 Speaker 1: a bit of a disconnect that we're in this horrendous 150 00:10:21,760 --> 00:10:25,199 Speaker 1: economic crisis and yet bankruptcy filings are down. I will 151 00:10:25,240 --> 00:10:28,280 Speaker 1: be surprised if they remain low, but it is a 152 00:10:28,280 --> 00:10:31,120 Speaker 1: bit shocking that they're still long now. There was some 153 00:10:31,240 --> 00:10:36,319 Speaker 1: relief for those already in Chapter thirteen from the Cares Act. 154 00:10:37,080 --> 00:10:40,800 Speaker 1: They allowed you to modify your plans, extend the time 155 00:10:40,840 --> 00:10:44,640 Speaker 1: of your Chapter thirteen bankruptcy things like that. Was there 156 00:10:44,760 --> 00:10:48,040 Speaker 1: enough relief so to the extent that you're going to 157 00:10:48,200 --> 00:10:52,360 Speaker 1: extend and you have no income, the extension really doesn't 158 00:10:52,360 --> 00:10:55,560 Speaker 1: help you and also one of the things that I 159 00:10:55,600 --> 00:11:00,640 Speaker 1: have said repeatedly is bankruptcy works. Well, if you have 160 00:11:00,880 --> 00:11:03,560 Speaker 1: sort of a one off problem, you know, you have 161 00:11:03,679 --> 00:11:08,240 Speaker 1: an unexpected financial catastrophe and you can't afford to pay it, 162 00:11:08,320 --> 00:11:10,920 Speaker 1: you file for bankruptcy, you're able to get that discharge. 163 00:11:11,200 --> 00:11:15,280 Speaker 1: The problem that we're seeing now with America, certainly the 164 00:11:15,320 --> 00:11:18,400 Speaker 1: middle class and also to some extent our lower income 165 00:11:18,440 --> 00:11:22,880 Speaker 1: workers as well, is there is instability. And so even 166 00:11:22,920 --> 00:11:25,600 Speaker 1: if you get an extension or if you're told you 167 00:11:25,600 --> 00:11:28,560 Speaker 1: can file for bankruptcy, if you don't know that you 168 00:11:28,600 --> 00:11:32,600 Speaker 1: are going to have any income to repay any bills 169 00:11:32,679 --> 00:11:36,720 Speaker 1: Interchapter thirteen plans, there's no reason to file. And again, 170 00:11:36,720 --> 00:11:39,559 Speaker 1: as I said earlier, the extension doesn't help you if 171 00:11:39,600 --> 00:11:43,160 Speaker 1: you have no income to pay. Are there any solutions 172 00:11:43,200 --> 00:11:47,840 Speaker 1: to help make bankruptcy a better prospect for black debtors. Well, 173 00:11:47,960 --> 00:11:50,720 Speaker 1: I've been on a pair for the last couple of years. 174 00:11:50,960 --> 00:11:53,240 Speaker 1: One of the things that we don't know in bankruptcy 175 00:11:53,320 --> 00:11:56,880 Speaker 1: is anything about race because they're not required to collect 176 00:11:56,920 --> 00:12:00,000 Speaker 1: that data. And so the academic studies have been terrific, 177 00:12:00,160 --> 00:12:04,240 Speaker 1: but these are professors who went about to collect the data. 178 00:12:04,320 --> 00:12:08,920 Speaker 1: There's absolutely no reason that the Administrative office can't say 179 00:12:08,960 --> 00:12:12,920 Speaker 1: that bankruptcy courts, you know, as part of filing for bankruptcy, 180 00:12:13,240 --> 00:12:16,720 Speaker 1: we need to have information about race because it's hard 181 00:12:16,920 --> 00:12:20,920 Speaker 1: to figure out exactly what's going on in bankruptcy. If 182 00:12:20,960 --> 00:12:24,520 Speaker 1: we're not keeping track of what's going on in bankruptcy, 183 00:12:24,800 --> 00:12:27,280 Speaker 1: and so we want to know what's going on with 184 00:12:27,360 --> 00:12:30,760 Speaker 1: respect to race, then we need to count it. And 185 00:12:30,840 --> 00:12:33,760 Speaker 1: for example, if we then see that, you know, blacks 186 00:12:33,760 --> 00:12:36,880 Speaker 1: are disproportionately you know, three times, it's like that I'm 187 00:12:36,920 --> 00:12:39,240 Speaker 1: just making up a number here three times, it's likely 188 00:12:39,480 --> 00:12:43,680 Speaker 1: to be pushed into a more expensive, longer term Chapter 189 00:12:43,760 --> 00:12:48,480 Speaker 1: thirteen than to be pushed into a shorter, cheaper Chapter seven. 190 00:12:49,120 --> 00:12:53,040 Speaker 1: We can then go about asking the trustees officers, to judges, 191 00:12:53,559 --> 00:12:56,240 Speaker 1: the lawyers, why are you doing this? But one of 192 00:12:56,240 --> 00:12:58,440 Speaker 1: the problems that we have right now is we don't 193 00:12:58,480 --> 00:13:02,880 Speaker 1: have comprehensive data. That was another surprise, because it seems 194 00:13:02,920 --> 00:13:06,600 Speaker 1: like every form you fill out, any official form, they 195 00:13:06,679 --> 00:13:09,679 Speaker 1: ask about your race or ethnicity. So it's kind of 196 00:13:09,679 --> 00:13:12,199 Speaker 1: odd that they don't ask that in the bankruptcy court. 197 00:13:13,080 --> 00:13:16,360 Speaker 1: You can say, odd, I hope it is not intentional, 198 00:13:16,720 --> 00:13:19,560 Speaker 1: but certainly when we see what's going on now with 199 00:13:19,720 --> 00:13:23,400 Speaker 1: the census, and you know, ending things early in the 200 00:13:23,440 --> 00:13:27,760 Speaker 1: potential of an undercount. One wonders if no one wants 201 00:13:27,800 --> 00:13:31,720 Speaker 1: to see the data. But there's absolutely no reason. You're right. 202 00:13:31,880 --> 00:13:33,760 Speaker 1: I mean every time we see out of perform about 203 00:13:33,760 --> 00:13:38,160 Speaker 1: almost anything there as you know what, gender, which race, 204 00:13:38,520 --> 00:13:41,280 Speaker 1: but not in bankruptcy. Thanks for being on the Bloomberg 205 00:13:41,360 --> 00:13:45,120 Speaker 1: Laws shell. Michelle. That's Michelle Dickerson, a professor of bankruptcy 206 00:13:45,240 --> 00:13:48,199 Speaker 1: law at the University of Texas at Austin Law School. 207 00:13:49,880 --> 00:13:53,240 Speaker 1: What would a president Biden mean for employers and employees, 208 00:13:53,440 --> 00:13:56,360 Speaker 1: at least according to his policy initiatives, Well, if you 209 00:13:56,400 --> 00:13:59,320 Speaker 1: live in California, you may already have a notion of 210 00:13:59,360 --> 00:14:02,720 Speaker 1: what the legal landscape is likely to be. Joining me 211 00:14:02,800 --> 00:14:06,000 Speaker 1: is employment law expert Amphony on c, a partner at 212 00:14:06,040 --> 00:14:10,719 Speaker 1: Proscouer Rose give us an overview. Will change as in 213 00:14:10,840 --> 00:14:16,679 Speaker 1: the Biden administration in employment laws benefit employers or employees? 214 00:14:17,559 --> 00:14:22,360 Speaker 1: I think the changes that are proposed will overwhelmingly benefit 215 00:14:22,400 --> 00:14:28,520 Speaker 1: employees and in particular labor unions. Many of the proposals 216 00:14:28,760 --> 00:14:32,560 Speaker 1: fulfill a wish list that organized labor has had for 217 00:14:32,880 --> 00:14:36,080 Speaker 1: many years. Indeed, in some cases decades, all of which 218 00:14:36,320 --> 00:14:40,920 Speaker 1: are addressed in some way or another by the Biden proposals. 219 00:14:41,000 --> 00:14:45,760 Speaker 1: So I guess by indirect association, employees will be benefited 220 00:14:45,760 --> 00:14:49,840 Speaker 1: by that, but principally labor unions will be assisted and 221 00:14:50,240 --> 00:14:53,400 Speaker 1: aided by much of the legislation that is proposed by 222 00:14:53,440 --> 00:14:59,040 Speaker 1: the prospective Biden administration. Unions have been losing power for years, 223 00:14:59,400 --> 00:15:02,680 Speaker 1: even as if freeing court has added to their woes. 224 00:15:03,120 --> 00:15:06,800 Speaker 1: Is it even possible to dial that back? Well, that's 225 00:15:06,920 --> 00:15:10,080 Speaker 1: really what much of this legislation looks like. It appears 226 00:15:10,080 --> 00:15:12,720 Speaker 1: to be a rearguard action on the part of labor 227 00:15:12,880 --> 00:15:16,440 Speaker 1: unions to try to at least hold on to the 228 00:15:16,480 --> 00:15:20,920 Speaker 1: percentage of the workforce that they currently represent, and perhaps 229 00:15:20,920 --> 00:15:24,040 Speaker 1: even reverse the trend that has been going on since 230 00:15:24,200 --> 00:15:29,520 Speaker 1: nineteen fifties, which has seen consistent reductions in the number 231 00:15:29,680 --> 00:15:34,080 Speaker 1: and percentage of employees that are represented by labor unions. 232 00:15:34,160 --> 00:15:37,560 Speaker 1: We are in a situation today in the United States 233 00:15:37,640 --> 00:15:43,960 Speaker 1: where approximately ten percent of the workforce is unionized. That's 234 00:15:44,000 --> 00:15:49,520 Speaker 1: down from over in the and if you break down 235 00:15:49,520 --> 00:15:53,560 Speaker 1: that ten percent that exists today, that's only about six 236 00:15:54,640 --> 00:15:58,280 Speaker 1: of the private sector and approximately a third of the 237 00:15:58,320 --> 00:16:02,480 Speaker 1: public sector. So public employe unions are really quite robust 238 00:16:02,600 --> 00:16:06,640 Speaker 1: still in today's environment. But where unions have really lost 239 00:16:06,760 --> 00:16:11,320 Speaker 1: ground is among private sector employers. What do you see 240 00:16:11,320 --> 00:16:15,160 Speaker 1: as some of the most important changes that would directly 241 00:16:15,200 --> 00:16:19,080 Speaker 1: affect unions? Sort of job one, if you will. The 242 00:16:19,160 --> 00:16:21,920 Speaker 1: unions have been in effect. This was true in the 243 00:16:21,960 --> 00:16:24,200 Speaker 1: early years of the Obama administration. To try to get 244 00:16:24,240 --> 00:16:27,720 Speaker 1: this pass as well, something known as card check. The 245 00:16:27,760 --> 00:16:32,880 Speaker 1: proposed legislation sometimes goes by the acronym f E f 246 00:16:33,000 --> 00:16:36,000 Speaker 1: C A, which stands for the Employee Free Choice Act. 247 00:16:36,720 --> 00:16:38,920 Speaker 1: It's somewhat of an ironic name for it because really 248 00:16:38,960 --> 00:16:43,120 Speaker 1: what it does is it eliminates the need for elections 249 00:16:43,240 --> 00:16:46,920 Speaker 1: in unionization campaigns. Today, what we have is, if you 250 00:16:47,000 --> 00:16:52,760 Speaker 1: have a non unionized workforce, the union needs to qualify 251 00:16:52,880 --> 00:16:57,680 Speaker 1: to have an election, which is federally supervised and by 252 00:16:57,680 --> 00:17:00,680 Speaker 1: the National Relations Board, And of course a union wins 253 00:17:00,720 --> 00:17:04,800 Speaker 1: that election, the employer and the employees have union then 254 00:17:04,840 --> 00:17:07,560 Speaker 1: collect the bargaining takes place. The Employee Free Choice Act 255 00:17:07,760 --> 00:17:13,040 Speaker 1: approaches the situation somewhat differently. It allows union officials organizers 256 00:17:13,080 --> 00:17:18,760 Speaker 1: to get employees to sign cards without there being any election, 257 00:17:18,840 --> 00:17:22,800 Speaker 1: without there being any campaign and if the union can 258 00:17:22,840 --> 00:17:27,240 Speaker 1: get enough cards the majority of the workforce to sign 259 00:17:27,320 --> 00:17:30,240 Speaker 1: these cards. UH. And of course it's very difficult to 260 00:17:30,240 --> 00:17:34,480 Speaker 1: tell what the circumstance center which UH those cards are signed. 261 00:17:34,720 --> 00:17:36,639 Speaker 1: That there could be threats, there could be promises that 262 00:17:36,800 --> 00:17:40,679 Speaker 1: are unmonitored by the government, unmonitored by the employer. But 263 00:17:40,720 --> 00:17:44,800 Speaker 1: if if the union shows up with plus one of 264 00:17:44,920 --> 00:17:48,440 Speaker 1: those cards, the union exists at the union will then 265 00:17:48,480 --> 00:17:52,720 Speaker 1: be subject to collective bargaining with the employer and there 266 00:17:52,720 --> 00:17:55,040 Speaker 1: will be no election. So, although it's called the Employee 267 00:17:55,040 --> 00:17:58,520 Speaker 1: Free Choice Act BAC, employees will be deprived of the 268 00:17:58,680 --> 00:18:01,159 Speaker 1: right to have an election in the event that the 269 00:18:01,280 --> 00:18:05,879 Speaker 1: percent plus one cards are gotten by the union behind 270 00:18:05,880 --> 00:18:10,480 Speaker 1: the scenes. Usually, what about right to work? States? Will 271 00:18:10,520 --> 00:18:17,600 Speaker 1: that sept interfere. Most union policy involving collective bargaining rights, etcetera. 272 00:18:18,080 --> 00:18:23,480 Speaker 1: Exists on the federal level, but as a result of 273 00:18:24,480 --> 00:18:27,240 Speaker 1: along of the Taft partly Acts was passed in the 274 00:18:27,280 --> 00:18:32,400 Speaker 1: nineteen fifties. UH. There is the right for and has 275 00:18:32,520 --> 00:18:36,640 Speaker 1: been amended. There's the right for states to regulate some 276 00:18:36,840 --> 00:18:41,119 Speaker 1: of the aspects of this, and approximately twenty seven states 277 00:18:41,119 --> 00:18:43,560 Speaker 1: in the United States have what are called right to 278 00:18:43,600 --> 00:18:48,280 Speaker 1: work laws, and essentially what they do is they prohibit 279 00:18:48,640 --> 00:18:53,040 Speaker 1: so called union security clauses. Union security clauses say that 280 00:18:53,119 --> 00:18:56,720 Speaker 1: anybody who works and gets a job in this workplace, 281 00:18:56,720 --> 00:18:59,560 Speaker 1: whether they belong to union or not, must pay union dudes. 282 00:19:00,200 --> 00:19:03,120 Speaker 1: And in those states seven or so that have these 283 00:19:03,200 --> 00:19:05,960 Speaker 1: right to work laws, that kind of provision is illegal. 284 00:19:06,200 --> 00:19:09,320 Speaker 1: One of the proposals in the Biden Plan is to 285 00:19:09,760 --> 00:19:13,639 Speaker 1: make it illegal for states to have right to work laws, 286 00:19:13,680 --> 00:19:17,679 Speaker 1: meaning that these union security clauses will once again return 287 00:19:17,720 --> 00:19:20,400 Speaker 1: to all states, and that no state will be able 288 00:19:20,400 --> 00:19:24,879 Speaker 1: to have a different policy with respect to not recognizing 289 00:19:25,400 --> 00:19:28,399 Speaker 1: the obligation of an employee, whether he or she is 290 00:19:28,440 --> 00:19:31,080 Speaker 1: a member of the union or not, she who pay 291 00:19:31,240 --> 00:19:34,080 Speaker 1: union dues. And that will be obviously a significant impact, 292 00:19:34,359 --> 00:19:37,359 Speaker 1: primarily in the Midwest and in many southern states that 293 00:19:37,400 --> 00:19:40,119 Speaker 1: have these right to work laws. Diversity and inclusion in 294 00:19:40,160 --> 00:19:43,720 Speaker 1: the workplace have been issues for some time now. How 295 00:19:43,760 --> 00:19:48,560 Speaker 1: would a Biden administration promote those policies. It's interesting I 296 00:19:49,000 --> 00:19:53,159 Speaker 1: practice in California, and many of the proposals in the 297 00:19:53,200 --> 00:19:57,600 Speaker 1: Biden Plans come almost directly from the laws and the 298 00:19:57,720 --> 00:20:01,000 Speaker 1: policies that exist here in California. For that are or worse. 299 00:20:01,400 --> 00:20:06,159 Speaker 1: One of the primary tenets of the Biden Plan is 300 00:20:06,200 --> 00:20:09,919 Speaker 1: something called the Paychecks Fairness Act, which would enact on 301 00:20:10,000 --> 00:20:12,800 Speaker 1: the federal level for therefore would apply to all states, 302 00:20:13,040 --> 00:20:18,200 Speaker 1: a sort of supercharge bill that would address wage disparity 303 00:20:18,280 --> 00:20:21,320 Speaker 1: on the basis of sex. Both California and New York 304 00:20:21,359 --> 00:20:26,159 Speaker 1: already have fairly robust laws with respect to this issue, 305 00:20:26,880 --> 00:20:29,240 Speaker 1: and this would again federalize that so that it would 306 00:20:29,280 --> 00:20:33,240 Speaker 1: apply in all jurisdictions. What it would do, among other things, 307 00:20:33,400 --> 00:20:38,800 Speaker 1: is narrow the employer defenses that would exist for explaining 308 00:20:38,880 --> 00:20:43,359 Speaker 1: or trying to defend against who wage disparity claims. UH. 309 00:20:43,400 --> 00:20:48,479 Speaker 1: It would also restrict employers from preventing employees who might 310 00:20:48,520 --> 00:20:51,840 Speaker 1: otherwise discuss wage information. There are already our provisions about 311 00:20:51,840 --> 00:20:55,119 Speaker 1: that in some statutes, but this would elevate that so 312 00:20:55,160 --> 00:20:58,480 Speaker 1: that employees could discuss wage information among themselves. It would 313 00:20:58,520 --> 00:21:02,679 Speaker 1: increase civil penalties or employers that violate the provisions, and 314 00:21:02,800 --> 00:21:06,040 Speaker 1: also importantly, it would require employers to provide compensation data 315 00:21:06,080 --> 00:21:08,639 Speaker 1: to the e o C, which is the federal anti 316 00:21:08,640 --> 00:21:13,760 Speaker 1: discrimination agency. Employers would have to break down employee populations 317 00:21:13,760 --> 00:21:16,800 Speaker 1: by race, sex, and national origin. Again, many of the 318 00:21:16,920 --> 00:21:20,640 Speaker 1: aspects of that already exist in California and New York. 319 00:21:20,960 --> 00:21:26,800 Speaker 1: Another really major and important anti discrimination civil rights provision 320 00:21:26,880 --> 00:21:28,879 Speaker 1: is going to be called the Equality Act. And what 321 00:21:29,000 --> 00:21:31,000 Speaker 1: this would do with prohibit discrimination on the base of 322 00:21:31,040 --> 00:21:35,720 Speaker 1: sexual orientation or gender identity on the federal level. Now, 323 00:21:36,080 --> 00:21:39,439 Speaker 1: by the way, there is no statutory formulation on that topic. 324 00:21:39,520 --> 00:21:43,520 Speaker 1: Many many states already have anti discrimination provisions that touch 325 00:21:43,680 --> 00:21:47,080 Speaker 1: on sexual orientation and gender identity. But to some extent, 326 00:21:47,480 --> 00:21:51,680 Speaker 1: this proposed Act has been overtaken by events because we 327 00:21:51,800 --> 00:21:54,960 Speaker 1: know you've reported in past shows of the United States 328 00:21:54,960 --> 00:21:58,520 Speaker 1: Supreme Court in June decided a case called bow Stock 329 00:21:58,920 --> 00:22:02,560 Speaker 1: versus Clayton County, Georgia. And in that case, the United 330 00:22:02,560 --> 00:22:08,160 Speaker 1: States Supreme Court decided by interpreting the existing statutory language 331 00:22:08,160 --> 00:22:12,520 Speaker 1: from titled Southern to include anti discrimination provisions that aren't 332 00:22:12,640 --> 00:22:16,440 Speaker 1: expressly stated in the statute. So, to some extent, the 333 00:22:16,480 --> 00:22:19,879 Speaker 1: Equality Act has become less of a major priority because 334 00:22:19,920 --> 00:22:21,879 Speaker 1: the Supreme Court has done a happy lifting on that 335 00:22:22,000 --> 00:22:27,120 Speaker 1: already by interpreting existing law to include anti discrimination provisions 336 00:22:27,160 --> 00:22:32,639 Speaker 1: based on sexual orientation and gender identity. Despite the CARES Act, 337 00:22:32,960 --> 00:22:36,400 Speaker 1: a lot of employees right now are having trouble with 338 00:22:36,600 --> 00:22:40,320 Speaker 1: paid sick and family leave during COVID nineteen, and there 339 00:22:40,320 --> 00:22:42,840 Speaker 1: have been a lot of lawsuits filed. How would the 340 00:22:42,880 --> 00:22:47,720 Speaker 1: Biden administration deal with those on a more permanent level. 341 00:22:48,440 --> 00:22:52,320 Speaker 1: There is another proposed piece of legislation called the Healthy 342 00:22:52,400 --> 00:22:57,080 Speaker 1: Families Act that would require employers to provide paid sickly, 343 00:22:57,520 --> 00:23:00,560 Speaker 1: which again is already mandatory and telep barn in many 344 00:23:00,560 --> 00:23:03,880 Speaker 1: other major cities in some other states. Specifically, the bill 345 00:23:03,920 --> 00:23:08,080 Speaker 1: would require that employers for fifteen or more employees would 346 00:23:08,119 --> 00:23:11,560 Speaker 1: need to provide paidsickly for employees to use for themselves 347 00:23:11,560 --> 00:23:14,159 Speaker 1: in their families, and they will earn it at a 348 00:23:14,240 --> 00:23:16,879 Speaker 1: rate of one hour of paid sickly for every thirty 349 00:23:16,880 --> 00:23:20,919 Speaker 1: hours worked. People require employers with fewer than fifteen employees 350 00:23:21,320 --> 00:23:25,000 Speaker 1: to write either that rate of paidsickly or at least 351 00:23:25,040 --> 00:23:28,680 Speaker 1: fifty six hours of unpaid sickly. So again, this would 352 00:23:28,760 --> 00:23:31,600 Speaker 1: federalize an initiative that already exists on a number of 353 00:23:31,760 --> 00:23:35,439 Speaker 1: statute books in the state and local levels. Changes in 354 00:23:35,560 --> 00:23:39,720 Speaker 1: technology will continue to eliminate jobs for many workers. You 355 00:23:39,720 --> 00:23:43,000 Speaker 1: don't want to stop progress, So how would Biden deal 356 00:23:43,080 --> 00:23:46,800 Speaker 1: with those kinds of changes? Among other things? If the 357 00:23:46,920 --> 00:23:49,840 Speaker 1: laws that are proposed and the policies that are proposed 358 00:23:49,840 --> 00:23:53,840 Speaker 1: by the potential by administration get passed. It would require 359 00:23:54,280 --> 00:23:57,959 Speaker 1: employers that receive federal funds to give employees notice of 360 00:23:57,960 --> 00:24:02,040 Speaker 1: technology changes in automation that might affect them. Biden would 361 00:24:02,080 --> 00:24:05,840 Speaker 1: also seek to claw back certain tax benefits and public 362 00:24:05,960 --> 00:24:10,320 Speaker 1: funding from companies that would offshore American jobs. Some of 363 00:24:10,320 --> 00:24:12,280 Speaker 1: these is not a great deal specificity about, but that 364 00:24:12,400 --> 00:24:16,640 Speaker 1: is something that clearly is contemplated as well. How much 365 00:24:16,680 --> 00:24:23,120 Speaker 1: are these proposals like what California already has in law, Well, 366 00:24:23,160 --> 00:24:25,919 Speaker 1: it's interesting. Some of them are provisions that have been 367 00:24:25,960 --> 00:24:28,240 Speaker 1: tried in that have failed for one reason or another. 368 00:24:28,280 --> 00:24:33,040 Speaker 1: For example, one of the important Democratic backed provisions, which 369 00:24:33,080 --> 00:24:37,639 Speaker 1: isn't specifically stated in the Biden proposals, but which he 370 00:24:37,720 --> 00:24:43,000 Speaker 1: presumably would be receptive to, involved the outlawing essentially of 371 00:24:43,320 --> 00:24:47,320 Speaker 1: arbitration agreements in the employment setting, as well as those 372 00:24:47,320 --> 00:24:50,600 Speaker 1: stuttings in some other contexts as well. But with respect 373 00:24:50,640 --> 00:24:54,800 Speaker 1: to employment, this means that employers and employees would no 374 00:24:54,880 --> 00:24:58,959 Speaker 1: longer be able to lawfully enter into arbitration agreements by 375 00:24:59,040 --> 00:25:02,560 Speaker 1: which beute that might be heard now in front of 376 00:25:02,560 --> 00:25:06,600 Speaker 1: an arbitrator involving discrimination, harassment, wrongful termination, or whatever it 377 00:25:06,640 --> 00:25:09,280 Speaker 1: may be, would have to be heard by a jury, 378 00:25:09,320 --> 00:25:12,320 Speaker 1: and of course that would result in a huge number 379 00:25:12,440 --> 00:25:15,560 Speaker 1: of increased claims being brought in front of juries all 380 00:25:15,560 --> 00:25:18,679 Speaker 1: over the country. I think that would significantly clawed courts. 381 00:25:18,880 --> 00:25:20,679 Speaker 1: But this has been again on the wish list, not 382 00:25:20,800 --> 00:25:22,960 Speaker 1: of unions in this case, but on the part of 383 00:25:22,960 --> 00:25:26,680 Speaker 1: the trial lawyers that represent employees, because they obviously would 384 00:25:26,760 --> 00:25:29,000 Speaker 1: much prefer to be in front of a jury in 385 00:25:29,080 --> 00:25:31,960 Speaker 1: most of these cases rather than in front of a 386 00:25:32,000 --> 00:25:37,720 Speaker 1: retired judge or senior employment law practitioner who typically populates 387 00:25:37,760 --> 00:25:41,000 Speaker 1: the arbitration ranks. And so one of the statutes that 388 00:25:41,080 --> 00:25:45,760 Speaker 1: has already passed the House and has support among Democrats 389 00:25:45,760 --> 00:25:50,040 Speaker 1: in the Senators something called the Forced Arbitration Injustice Repeal Act, 390 00:25:50,600 --> 00:25:53,240 Speaker 1: the Fair Act, And what that would do would make 391 00:25:53,400 --> 00:25:57,360 Speaker 1: pre dispute arbitration agreements illegal in California and everywhere else. 392 00:25:57,400 --> 00:26:00,840 Speaker 1: I say California, because we did pass a law a 393 00:26:00,920 --> 00:26:03,560 Speaker 1: year or so ago, as in New York, to do 394 00:26:03,680 --> 00:26:07,640 Speaker 1: the same thing to outlaw arbitration, but those provisions came 395 00:26:07,720 --> 00:26:11,119 Speaker 1: up against the federal law. The Federal Arbitration Act, and 396 00:26:11,160 --> 00:26:14,439 Speaker 1: in both instances, federal courts struck down those state laws. 397 00:26:14,760 --> 00:26:18,359 Speaker 1: So what this would do would federalize that rule, which 398 00:26:18,400 --> 00:26:20,640 Speaker 1: is that there would no longer be any arbitration between 399 00:26:20,680 --> 00:26:24,199 Speaker 1: employers and employees in these cases. Another major aspect of 400 00:26:24,320 --> 00:26:27,600 Speaker 1: what some travelers have been advocating for a long time 401 00:26:27,760 --> 00:26:32,359 Speaker 1: is the elimination of class action waivers, which can become 402 00:26:32,440 --> 00:26:36,200 Speaker 1: fairly commonplace in California and elsewhere. One of the things 403 00:26:36,200 --> 00:26:39,399 Speaker 1: that is usually a feature of an arbitration agreement is 404 00:26:39,440 --> 00:26:42,720 Speaker 1: a provision that states that the employee agrees not to 405 00:26:43,160 --> 00:26:46,560 Speaker 1: participate or lead a class action or a collective action 406 00:26:46,640 --> 00:26:50,119 Speaker 1: against the employer. The United States Supreme Court has determined 407 00:26:50,119 --> 00:26:53,240 Speaker 1: that those are legal. That rule would be repealed by 408 00:26:53,280 --> 00:26:57,280 Speaker 1: something called the Protecting the Right to Organize Act. One 409 00:26:57,320 --> 00:26:59,880 Speaker 1: of the provisions in that act states that class Act 410 00:27:00,080 --> 00:27:03,720 Speaker 1: waivers will no longer be enforceable, meaning that employees will 411 00:27:03,720 --> 00:27:06,639 Speaker 1: be free to cloud class actions against their employers and 412 00:27:06,840 --> 00:27:09,320 Speaker 1: to participate in such a class action. Thanks so much 413 00:27:09,320 --> 00:27:12,320 Speaker 1: for being on the Bloomberg Last Show, Tony, That's Anthony 414 00:27:12,359 --> 00:27:16,520 Speaker 1: on cd A partner Proskauer Rose. I'm June Grosso. Thanks 415 00:27:16,560 --> 00:27:19,120 Speaker 1: so much for listening. And please tune into The Bloomberg 416 00:27:19,160 --> 00:27:21,600 Speaker 1: Last Show every week night to ten pm Eastern on 417 00:27:21,680 --> 00:27:25,080 Speaker 1: Bloomberg Radio than