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Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio.

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Speaker 1: The American Civil Liberties Union is challenging South Carolina's returned

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Speaker 1: to work order for state employees. In March, Governor Henry

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Speaker 1: McMaster cited a decline in new COVID nineteen cases and

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Speaker 1: hospitalizations and ordered state agencies to immediately expedite the return

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Speaker 1: of non essential state employees to in person work by

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Speaker 1: the beginning of this month. Joining me is Akram Fiser,

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Speaker 1: a professor of law at Lincoln Memorial University, SO tell

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Speaker 1: us about the A c l USE lawsuit. The A

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Speaker 1: c l U lawsuit is challenging the Governor of South

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Speaker 1: Carolina's decision to require non essential employees, including their plaintiffs,

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Speaker 1: a woman named me how who's basically as sensibly a

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Speaker 1: representative plaintiffs, to force her and other non essential state

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Speaker 1: employees to return to work in person at their offices,

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Speaker 1: and their claim is the lawsuit is brought about because

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Speaker 1: the governor's decision unfairly is putting workers such as the

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Speaker 1: plaintiffs in a dangerous situation because COVID remains a very

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Speaker 1: dangerous disease and it's still starting in South Carolina, and

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Speaker 1: their concern is and the basis for their lawsuit is

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Speaker 1: that it has a disproportioned effect on women and racial

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Speaker 1: minorities and the disabled in South Carolina, because women, racial minorities,

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Speaker 1: and the disabled typically have less access to things like

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Speaker 1: care for their children, and they're plausibly being put in

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Speaker 1: more dangerous positions by returning to work compared to better

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Speaker 1: compensated employees are higher up employees. Do we know why

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Speaker 1: the governor wants them back to work so soon? We

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Speaker 1: I don't exactly know why. It's conjectural, but what you

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Speaker 1: can conjecture the political culture in South Carolina is very

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Speaker 1: conservative and consistent with that political culture and the governor's

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Speaker 1: own political inclinations and the pressure he faces, I think

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Speaker 1: there's a lot of push to require all employees to

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Speaker 1: return to work and reopen South Carolina economy for economic

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Speaker 1: and political reasons. So the A c. L. You claimed

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Speaker 1: that the executive order exceeded the governor's authority. The one

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Speaker 1: constitutional aspect is what is the power of the governor

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Speaker 1: of South Carolina to issue an executive order of this type?

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Speaker 1: And that issue tends to be very poorly adjudicated because

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Speaker 1: executive orders have a certain ambiguity to them as to

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Speaker 1: what can be done via executive order and what requires legislation. However,

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Speaker 1: in this case, the executive order is an amendment to

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Speaker 1: the previous executive order he issued at the start of

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Speaker 1: the pandemic, which actually said that all non essential workers

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Speaker 1: have to work at home. So, in a strange sense,

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Speaker 1: the plaint disposition is undermined by the fact that you

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Speaker 1: regional requirement that they work from home was also by

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Speaker 1: executive orders. That the governor doesn't have power to issue

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Speaker 1: this executive order. He wouldn't have the power to issue

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Speaker 1: the initial executive orders. Our executive orders of a governor

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Speaker 1: in a state similar to executive orders of the President

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Speaker 1: of the United States. They tend to be june um.

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Speaker 1: They tend to be the same basis. One thing that

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Speaker 1: has to be said, though, is quite often executive orders

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Speaker 1: are required at the state level, even more so than

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Speaker 1: at the federal level, because quite often the state legislature

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Speaker 1: is itinerant and spent a greater amount of its time

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Speaker 1: out of session. So especially like for example, during COVID,

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Speaker 1: like in Tennessee where I live, the legislature was not

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Speaker 1: in session and inaccessible at the time the governor issued

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Speaker 1: the executive orders in questions, what would the a c

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Speaker 1: L you have to prove to make its case here? Well,

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Speaker 1: in terms of discrimination, their claim is that the executive

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Speaker 1: orders first beyond the governor's authority. That is, I think

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Speaker 1: the pretty high hurdle, because the courts are going to

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Speaker 1: be reluctant to limit subernatorialist authority to issue emerging the

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Speaker 1: executive orders during a time of crisis. If indeed, the

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Speaker 1: governor could only act based on legislation, that would make

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Speaker 1: it extremely difficult for a governor to protect the state

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Speaker 1: during a time of crisis because it's hard to convene

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Speaker 1: the legislature. The second thing is that claiming that assuming

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Speaker 1: the executive order was legitimately issued is improperly discriminatory because

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Speaker 1: it has a disproportionate negative effect on women, people of color,

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Speaker 1: and the disabled, who tend to have more difficulty returning

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Speaker 1: to the workplace for socio economics and other reasons for

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Speaker 1: the argument goes for example, with women, Women disproportionately have

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Speaker 1: the burden of childcare in American culture and in most cultures,

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Speaker 1: and because of that unfair burden compared to men, they

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Speaker 1: are the ones who are required to be at home

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Speaker 1: now during COVID, especially when schools have been closed or

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Speaker 1: children are learning online to avoid pandemic spreads. And there

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Speaker 1: are argument is to therefore require women to return is

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Speaker 1: a disproportionate negative effect on women's ability to participate in

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Speaker 1: the workplace, and that therefore discriminates against women on the

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Speaker 1: basis of their sex. That's the argument it would be,

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Speaker 1: and it would be based on the nineteen People or

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Speaker 1: Civil Rights Act, or whatever South Carolina equivalence. There are

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Speaker 1: problem with that claim, though, is recognizing that resumption to

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Speaker 1: work order a disproportionate effect on poorer people and women.

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Speaker 1: The governor would be able to rebut that claim because

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Speaker 1: the law says that the claim would be is rebutted

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Speaker 1: by a legitimate business reason for the disproportionate effect, And

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Speaker 1: here the legitimate business reason is his general desire to

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Speaker 1: reopen the South Carolina workplace. If you took the argument

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Speaker 1: its logical conclusion, then requiring any woman or minority to

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Speaker 1: work would be discrimination, because obviously it's more difficult for

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Speaker 1: women minorities to work in normal situations. To the cause

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Speaker 1: of those work life balanced difficulties that are culture imposes

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Speaker 1: on women so how could a resumption to go back

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Speaker 1: to work be discriminatory? Is there any requirement of that

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Speaker 1: accommodations be made? Typically when you're disabled, an accommodation can

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Speaker 1: be made. There's not a requirement of an accommodation though,

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Speaker 1: to my understanding, under the employment law, when all we're

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Speaker 1: asking is now no notice. The governor's executive Order says

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Speaker 1: resumed to work, it doesn't preclude supervisors providing accommodation text

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Speaker 1: a workforce, for example, it's very likely. Let's take, for example,

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Speaker 1: the plaintiff, if she goes back to the College of

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Speaker 1: child and in a non essential capacity, they will require

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Speaker 1: things like mask wearing and social distancing while she returns

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Speaker 1: to the workplace. So there's no evidence here we see

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Speaker 1: in the complaint or in the executive order that any

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Speaker 1: resumption to work will be anything but safely effectuated. Right, So,

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Speaker 1: for example, I I returned to work, but the requirement

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Speaker 1: is my students have to wear masks in the classroom

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Speaker 1: and I have to wear a mask, and we have

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Speaker 1: to distance from each other, and plausibly, if those safety

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Speaker 1: precautions weren't being met, there might be something that the

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Speaker 1: employees could pursue further, but right now, based on the

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Speaker 1: executive order and the details of the complaint, there's nothing

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Speaker 1: to indicate that the resumption of work for these non

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Speaker 1: essential workers will be anything but recognizing you can't be

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Speaker 1: completely safe. There's always a risk but that they would

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Speaker 1: do anything reckless in forcing the employees back to work.

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Speaker 1: So this is an uphill battle for the a c

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Speaker 1: l U. Is this the kind of case that won't

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Speaker 1: survive a motion to dismiss Well, I can't speak to

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Speaker 1: you know whether it would survive emotions. This means I

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Speaker 1: don't think this is the kind of case where an

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Speaker 1: injunction will be issued against the governor's order pending resumption

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Speaker 1: of the case, you know, pending conclusion of the case.

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Speaker 1: I think, for example, a dismissal, I think very plausibly

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Speaker 1: neither dismissal will be granted, but neither will an injunction

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Speaker 1: be issued and the a c l U and therefore

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Speaker 1: the the employees may be required to go back to

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Speaker 1: work in the interim. I understand the a c l

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Speaker 1: U is looking into New York City's return to work.

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Speaker 1: Would all these situations where a mayor or a governor

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Speaker 1: is ordering a return to work with the same considerations

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Speaker 1: be at play. I think it is, but I think

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Speaker 1: it's also determined and how these return to work orders

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Speaker 1: are effectuated is also determined by political culture, right, And

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Speaker 1: so for example, plausibly, a New York City mayor or

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Speaker 1: a New York governor in view of New York political culture,

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Speaker 1: is probably going to lead more on the side of

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Speaker 1: safety precautions and avoiding the risk of transmission than a

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Speaker 1: South Carolina or Southern governor who cases pressure based on

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Speaker 1: politics to resume life as it was before COVID. The

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Speaker 1: reality is both governors in all jurisdictions have a lot

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Speaker 1: of discretion and how to basically either maintain a because

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Speaker 1: states have broad police powers unlike the federal government, and

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Speaker 1: because based on those police powers, they're going to be

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Speaker 1: given broad discretion as to the whether they keep these

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Speaker 1: states relatively closed or whether they can require reopening. And

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Speaker 1: this is key because state employees, like all of us,

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Speaker 1: we have a constitutional right to do with ourselves as

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Speaker 1: we please, provide it right, but we don't have a

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Speaker 1: constitutional rights to our employment. And so, for example, the

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Speaker 1: argument could be made that if state employees feel uncomfortable

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Speaker 1: returning to work, there's no requirement that they keep those jobs.

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Speaker 1: It's the same true. Let's say a private employer it

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Speaker 1: orders everyone back to work. A private employer has has

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Speaker 1: yet has very broad discretion. Right. The only thing a

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Speaker 1: private employer cannot do is violate the civil rights laws

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Speaker 1: in in ordering a resi oumption to work, I think

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Speaker 1: can discriminal the basis of race or sex. But under

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Speaker 1: these terms and private employers have broad expression. And in fact,

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Speaker 1: private employers have ordered the resumption to work in an

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Speaker 1: area where in my field, private universities and colleges have

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Speaker 1: been much more aggressive ordering a return to work for

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Speaker 1: faculty and staff compared to public universities because private universities

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Speaker 1: are much more dependent on tuition revenue and dormitory revenue

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Speaker 1: for their viability. And you know, in most colleges, private

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Speaker 1: colleges in this country, if you allow faculty to teach

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Speaker 1: via zoom, students will not You will will plausibly neither enroll,

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Speaker 1: and they certainly will not choose to live in a

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Speaker 1: dorm and order the meal plan to have a zoom pedagogy. Right, So,

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Speaker 1: most private colleges, for example, have been much more aggressive

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Speaker 1: in ordering a resumption to the workplace suppose someone has

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Speaker 1: an underlying medical condition, does that qualify them for special treatment?

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Speaker 1: It doesn't necessarily qualify them, but typically based on the

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Speaker 1: Americans of disability, that and most state equivalent employers tend

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Speaker 1: to give and are required to give an accommodation. And

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Speaker 1: so the requirement of an accommodation, though, is an accommodation

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Speaker 1: as opposed to necessarily an exemption that precludes them from

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Speaker 1: getting the benefits of that work. So, for example, it

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Speaker 1: could well be that an employer might say, we're going

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Speaker 1: to allow an employee who's at a higher risk level

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Speaker 1: to stay at home. You know, a supervisor might allow

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Speaker 1: that or give them more space so that they have

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Speaker 1: less less risk of transmission. But that is all not

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Speaker 1: addressed in the executive order and very plausibly will be

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Speaker 1: less to supervisors within the organization throughout the state. And

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Speaker 1: I think it's very likely most supervisors will provide some accommodation.

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Speaker 1: But remember an accommodation is not an exemption for working.

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Speaker 1: It is you have to still work. But if there's

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Speaker 1: a way of providing you a feasible accommodation, that's different.

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Speaker 1: So how would you about the key issue here? I

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Speaker 1: think the key thing, June is what we're touching on

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Speaker 1: is that this is something that's based on and and

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Speaker 1: the entire COVID response is based on the governor's very

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Speaker 1: broad powers and the state government's very broad police powers

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Speaker 1: to protect the health, safety and welfare of its citizens.

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Speaker 1: And based on that very broad power and the governor

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Speaker 1: of South Carolina's broad power to protect the health safety

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Speaker 1: and welfare, executive orders were issued at the start of

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Speaker 1: the pandemic requiring employers to let their employees work from home,

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Speaker 1: or requiring in the case of state employees, requiring state

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Speaker 1: employees to work from home. Now, recognizing that COVID hasn't

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Speaker 1: been defeated and there's still a huge risk of spread,

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Speaker 1: and based on the plaintiffs complaint, only a relatively small

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Speaker 1: percentage of South Carolina population has been fully vaccinated. Right,

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Speaker 1: it's still resides within the state's police power to determine

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Speaker 1: when it can order an end to the pandemic related

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Speaker 1: health safety and welfare measures, and that's still a broad

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Speaker 1: power left with the governor, and it's especially a broad

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Speaker 1: power given to the government when it comes to dealing

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Speaker 1: with state employees and the governor recognizing that that potential

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Speaker 1: public policy negative in requiring people to return to work.

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Speaker 1: The governor tends to have that authority. However, be fair

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Speaker 1: by the governor. There's nothing that hamstrings it's employee supervisors

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Speaker 1: and how they will resume work duties. In other words,

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Speaker 1: there's nothing indicating that the governor's executive order is going

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Speaker 1: to require any supervisor to be reckless as as to

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Speaker 1: how we reintroduces workers into the workplace. That's a proviser

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Speaker 1: of Lincoln Memorial University. The embattled Republican Florida Congressman Matt

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Speaker 1: Gates is fighting back and vowing to overcome a Jostice

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Speaker 1: Department investigation into alleged sex thinking charges. Gates showed up

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Speaker 1: at a high profile Women for America first event at

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Speaker 1: former President Trump's golf course in Dralph, Florida, on Friday night.

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Speaker 1: When you see the leaks and the lies and the

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Speaker 1: falsehoods and the smears, when you see the anonymous sources

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Speaker 1: and insiders forecasting my demise, know this. They aren't really

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Speaker 1: coming for me. They're coming for you. I'm just in

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Speaker 1: the way. It was the Trump Justice Department that started

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Speaker 1: looking into Gates last summer, stemming from its investigation of

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Speaker 1: Joel Greenberg, a Gates friend and county tax collector. Joining

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Speaker 1: me is Bloomberg Legal reporter Eric Larson. So Eric. For

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Speaker 1: those who have been hiding under a rock somewhere, tell

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Speaker 1: us who Matt Gates is. So Matt Gates. He's thet

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Speaker 1: year old lawyer by trade. Uh. He is representing Florida's

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Speaker 1: first congressional districts in two thousand seven teen. Covers a

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Speaker 1: lot of the Florida Panhandle, including Pentacola. UM. He's very

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Speaker 1: popular with conservative Republican voters there. He's been easily re

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Speaker 1: elected UM in two dosan eighteen UM. And he's also

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Speaker 1: has a national profile UM as a very outspoken defender

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Speaker 1: of former President Trump. UM. He really went to bat

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Speaker 1: for him as often as possible. I got in front

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Speaker 1: of the cameras, got in front of Congress, he fellow

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Speaker 1: members of Congress, and really blasted um all the various

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Speaker 1: efforts to uh, you know, carry out this alleged witch

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Speaker 1: hunt against the Trump over the years. So very outspoken defender,

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Speaker 1: and that really raised his national profile. So now this

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Speaker 1: investigation started when Bill Barr was Attorney general. What's the

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Speaker 1: federal investigation about? So this federal investigation. I was first

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Speaker 1: reported um, you know by the New York Times just recently.

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Speaker 1: So it was as you said, it did start last

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Speaker 1: year under the Trump administration, UM, looking into Ali gatitions

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Speaker 1: that Gates was involved in in child sex traffick. Essentially

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Speaker 1: UM with whether or not he had a sexual relationship

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Speaker 1: with a seventeen year old girl and engaged in set

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Speaker 1: trafficking by paying for her to cross state line. You know,

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Speaker 1: of course he's denied this, UM, but you know, this

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Speaker 1: is the ongoing investigation in Washington. As you said, he

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Speaker 1: denies that. He also said that it has something to

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Speaker 1: do with an extortion attempt of his father. Yeah, this

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Speaker 1: is it's a little unclear exactly what is going on here. UM.

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Speaker 1: One of his first defenses was to claim that this

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Speaker 1: is all part of an elaborate attempt to extort him

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Speaker 1: out of twenty five million dollars that a former do

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Speaker 1: o J official had uh you know, threatened to make

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Speaker 1: public photographs um uh the Gates with miners um if

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Speaker 1: they didn't pay up. UM. He said that they went

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Speaker 1: to the authorities with these allegations and that there was

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Speaker 1: an investor stigation into this extortion. That's how he describes

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Speaker 1: it um that. So he claims that this is all

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Speaker 1: just an elaborate ruse to make make him look bad

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Speaker 1: UM and that it all started with an an attempt

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Speaker 1: to get money out of him. So, now who is

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Speaker 1: Joel Greenberg? Joel Greenberg is the former elected tax collector

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Speaker 1: in Seminole County, Florida. He uh was a close ally

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Speaker 1: um friend of of Mr Gates. You know, they attended

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Speaker 1: a lot of Republican events together, things like that. And

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Speaker 1: he was charged last year by federal prosecutors down in

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Speaker 1: Florida with various crimes of abuses UH of his power

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Speaker 1: as tax collector of uh, you know, using his database

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Speaker 1: there to um you know, harass um and stock people

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Speaker 1: who were he opposed, creating fake identifications. Pretty wide range

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Speaker 1: of allegations made that eventually saying fluted child sex trafficking UM.

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Speaker 1: And a lot of the allegations against him are apparently

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Speaker 1: overlapping with with Mr Gates. We heard something very ominous

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Speaker 1: sounding for Matt Gates from Greenberg's lawyer. That's right. There

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Speaker 1: was a hearing in this case in Florida last week. UM.

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Speaker 1: Mr Greenberg's lawyer got up in front of the court

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Speaker 1: and said that he his client agreed with prosecutors that

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Speaker 1: the best way to resolve the case was through a

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Speaker 1: guilty plea. They did not indicate which of the dozens

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Speaker 1: of charges he would potentially be cleaning guilty too, but

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Speaker 1: the sex trafficking charge of court is uh the most

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Speaker 1: serious there um, and they gave a mid May deadline

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Speaker 1: for the plea to be reached. Um. There wasn't much

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Speaker 1: else said about a plea agreement or cooperation, but one

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Speaker 1: can surmise that if there is a plea deal that

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Speaker 1: it probably wouldn't include some level of operation That wouldn't

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Speaker 1: be very surprising. And that cooperation, you know, the only

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Speaker 1: other person that's sort of been uh restlence in in

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Speaker 1: uh in this case is Mr Gates. So that's why

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Speaker 1: it's poses Potentially it's a serious threat, and Mr Greenberg's

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Speaker 1: lawyer said as much outside courts that day. According to

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Speaker 1: News of Course, he flout out said that that Mr

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Speaker 1: Gates should probably be pretty worried. And the comments of

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Speaker 1: Greenberg's lawyer, we're surprising considering that the deal hasn't been

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Speaker 1: made yet. Yeah. Normally, you know, defense woors like to

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Speaker 1: keep their cards supposed to their their vest and not

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Speaker 1: say any kind of hint about what their client might

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Speaker 1: potentially be cooperating about, especially when the congressman has not

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Speaker 1: been you know, charged with anything. He's not a part

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Speaker 1: of this case, you know, really publicly, um in any way.

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Speaker 1: So it's all, Uh, he really did put it out there,

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Speaker 1: and you could see that pretty quickly as well. That's

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Speaker 1: when Arison Gates also announced the hiring of some pretty

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Speaker 1: high profile criminal defense attorney um that uh sort of

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Speaker 1: made it clear that he was how serious he was

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Speaker 1: taking this. I mean, in fact, hiring one of Donald

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Speaker 1: Trump's defense attorneys, Mark Mukasey, uh to handle the case

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Speaker 1: for him, as well as the prominent New York criminal

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Speaker 1: defense attorney Isabel Krishner. We've talked before about lu Casey.

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Speaker 1: To tell us a little bit about him, because he's

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Speaker 1: got a high profile. Yeah, he's he's another big defender

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Speaker 1: of the former president. Has been involved in a lot

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Speaker 1: of the cases. Of course Mr Trump has based a

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Speaker 1: lot of different lawsuits in his individual capacity, UM and

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Speaker 1: also investigations, and uh mu Casey is representing Trump, I

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Speaker 1: mean the ongoing criminal investigation by Manhattan District attorneys Cyrus

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Speaker 1: Advance um as well as another investigation by the New

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Speaker 1: York Attorney General with Isha Jane. So Mr mue Casey

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Speaker 1: is qually involved in Trump's legal matters now and now

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Speaker 1: he's also deeply involved with perfecting that Gates, and Gates

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Speaker 1: is taking a position of adamant denial of any charges.

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Speaker 1: He's denied it very very strongly. Every opportunity he's gotten,

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Speaker 1: he's been appearing on the cable networks, um, denying these allegations.

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Speaker 1: And he also hired um a conservative political consulting uh

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Speaker 1: firm to represent him in this matter as well. When

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Speaker 1: that actually gives us another Trump connection because uh, the

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Speaker 1: woman who is his spokesman right now is named Aaron

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Speaker 1: Elmore and she was a former contestant on the Trump's

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Speaker 1: reality TV show, The Apprentice, and also his works on

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Speaker 1: his campaign. So, um, you've got a couple of different

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Speaker 1: Trump connections there. And they issued a statement the last week, um,

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Speaker 1: you know, blasting these allegations saying they were completely unfounded.

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Speaker 1: Um part of a you know, a set up. I

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Speaker 1: think they really want to try to portray what's happening

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Speaker 1: to Gates right now is similar to what happened to Trump,

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Speaker 1: you know, with the whole claims about the witch hunts

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Speaker 1: and everything like that. Um and his office, his congressional

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Speaker 1: office also put out a statement um by all the

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Speaker 1: various women who worked in his office saying what a

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Speaker 1: great guy he is and how he's never engaged to

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Speaker 1: you know, in any type of behavior that would be questionable. Um.

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Speaker 1: Of course, their statement didn't include the names of any women,

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Speaker 1: just said the women of his office, they attributed to them.

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Speaker 1: But so they've been They've put putting out a lot

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Speaker 1: of statements and denying this regularly. Trump has been out

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Speaker 1: there defending Gates the way Gates defended Trump. It's it's

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Speaker 1: hard to imagine that Gates would have been able to

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Speaker 1: hire the high profile lawyer like Mark Mcasey without Trump

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Speaker 1: sort of giving the green light on that. Um and

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Speaker 1: and Trump said in a statement that Gates, you know,

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Speaker 1: never asked him for a pardon. Um. And it must

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Speaker 1: be remembered that he has totally denied the accusations against him.

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Speaker 1: That's what Trump said last week. The House Ethics Committee

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Speaker 1: has opened an investigation as well. What's their investigation into? Well,

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Speaker 1: the House Ethics Committee is looking into essentially a lot

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Speaker 1: of these these these same allegations. So, uh, it's not

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Speaker 1: too surprising that they would do so given the amount

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Speaker 1: of public attention that is being directed at the congressman. Um.

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Speaker 1: You know, they put out a statement basically, you know,

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Speaker 1: saying the Committee is aware of the public allegations, and

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Speaker 1: uh they included, um, the fact that there are suggestions

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Speaker 1: of illicit drug use and sharing its inappropriate images and

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Speaker 1: videos on the House floor, possible misuse of state identification records, UM,

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Speaker 1: and converted campaign funds to personal use. Uh. So it's

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Speaker 1: really a lot um pretty much all of the allegations

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Speaker 1: that we've been seeing reported variously throughout the press. They're

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Speaker 1: they're going to be looking at all of them. Is

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Speaker 1: there any sense in the else doing its own investigation

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Speaker 1: while federal investigation is underway? Well, I mean, these federal

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Speaker 1: investigations can take a very long time. UM, the committee

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Speaker 1: might uh see it as within their their rights to

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Speaker 1: look at their own members conduct regardless of what's going

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Speaker 1: on with the federal investigation. I mean, as we saw

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Speaker 1: with the impeachment of uh former President Trump twice. Uh,

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Speaker 1: you know, there's a little bit of a difference due

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Speaker 1: process that happens in Congress. There you can have a

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Speaker 1: federal investigation where you are innocent until proven guilty. That's

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Speaker 1: sort of thing going on um that it's totally separate

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Speaker 1: from what the Committee and Congress might think of the members.

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Speaker 1: They don't necessarily need to wait for there to be

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Speaker 1: charges brought or trial or anything like that before they

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Speaker 1: could uh potentially make a move of their own, although

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Speaker 1: it's very early speculated about what that might be. Thanks

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Speaker 1: for being on the Bloomberg Law Show. Eric. That's Bloomberg

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Speaker 1: Legal reporter Eric Larson, and that's it for this edition

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Speaker 1: of the Bloomberg Lawn Show. Remember you can always at

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Speaker 1: the latest legal news on our Bloomberg Lawn Podcast. You

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Speaker 1: can find them on Apple Podcasts, Spotify, and at www

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Speaker 1: dot Bloomberg dot com, slash podcast, slash Law. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg