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

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Speaker 1: Donald Trump did it. Donald Trump did it, and all

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Speaker 1: his saying no, no, no is not true.

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Speaker 2: For the first time, a former president has been found

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Speaker 2: libel for sexual abuse and defamation. Donald Trump has been

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Speaker 2: accused by more than a dozen women of sexual misconduct,

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Speaker 2: but never before had a jury weighed those claims. And

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Speaker 2: after deliberating for less than three hours, that New York

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Speaker 2: jury of six men and three women found that Trump

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Speaker 2: had sexually abused and defamed Egene Carroll, a writer who

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Speaker 2: accused him of raping her in a department store in

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Speaker 2: the mid nineties. Carol said getting that verdict was probably

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Speaker 2: the happiest day of her life.

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Speaker 1: I'm overwhelmed, overwhelmed with joe, happiness and delight for the

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Speaker 1: women in this country.

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Speaker 2: The jury awarded Carol five million dollars in combined damages.

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Speaker 2: Trump's attorney, Joe Takapina, said they would appeal, apparently taking

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Speaker 2: some solace in the fact that the jury found that

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Speaker 2: Trump had not raped Carol.

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Speaker 3: For me, it's just about the results.

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Speaker 1: And at the end of the day, while you know

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Speaker 1: who's strange, Harby was.

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Speaker 3: Obviously very happy that Donald Trump was not granted a rapist.

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Speaker 3: I didn't think this should be any liability findings, so.

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Speaker 1: We'll pursue it.

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Speaker 2: And on his truth social platform, the former president called

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Speaker 2: a verdict a political hit job. I have absolutely no

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Speaker 2: idea who this woman is, he said, this verdict is

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Speaker 2: a disgrace, a continuation of the greatest witch hunt of

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Speaker 2: all time. Joining me is former federal prosecutor Jessica Roth,

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Speaker 2: a professor at Cardozo Law School. Jessica, what does this

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Speaker 2: verdict stand for?

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Speaker 4: Well, I think it was a resounding vindication of Future Carroll.

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Speaker 4: The jury took less than three hours to return a

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Speaker 4: unanimous verdict in her favor after a trial that was

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Speaker 4: about two weeks. It found that Donald Trump committed battery

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Speaker 4: when he sexually abused Miss Carroll in the mid nineteen

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Speaker 4: nineties at a Bergdorf Goodman's dressing room, and that he

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Speaker 4: defamed her in twenty twenty two when he denied publicly

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Speaker 4: her allegation after she had gone public with them. And

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Speaker 4: the jury's award of five million dollars to Miss Carroll,

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Speaker 4: mostly for compensatory rather than punitive damages, demonstrates not only

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Speaker 4: that the jury credited miss Carroll's account about the attack,

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Speaker 4: but also her testimony about how Trump's actions had harmed her.

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Speaker 2: The jury found that Trump did not rape Carol, they

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Speaker 2: found sexual abuse. Her testimony was that she was raped.

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Speaker 2: So does that mean they didn't fully buy her testimony

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Speaker 2: or was this a compromise verdict.

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Speaker 4: I don't think I would characterize it as a compromise verdict.

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Speaker 4: My sense of the case is that it was a

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Speaker 4: very important through line that there was pattern of how

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Speaker 4: Trump attacked women sexually. It was the account that was

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Speaker 4: given by the two other women who had come forward

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Speaker 4: and who were permitted to testify at the trial about

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Speaker 4: how Trump had assaulted them, and also the account that

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Speaker 4: Trump himself gave in that now infamous Access Hollywood video

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Speaker 4: where he talked about how when he would see a woman,

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Speaker 4: he would just move on her, as he said, and

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Speaker 4: start kissing her and touching her and grab her by

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Speaker 4: the genitals without asking for permission. In a sense, that

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Speaker 4: was the narrative that was just repeated over and over

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Speaker 4: again throughout the trial, and that narrative is most consistent

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Speaker 4: with sexual abuse, which doesn't involve an element of penetration

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Speaker 4: by his genitals and so to the extent that that

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Speaker 4: consistent narrative was important to the jury's quick verdict, it

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Speaker 4: makes sense that they would essentially check the box for

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Speaker 4: sexual abuse because that's most consistent with the account that

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Speaker 4: they heard over and over again.

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Speaker 2: So the standard on that count was preponderance of the

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Speaker 2: evidence that the claims were more likely to be true

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Speaker 2: than false. But as far as the defamation claim, the

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Speaker 2: standard was higher, although not as high as a criminal case.

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Speaker 2: Can you explain the standard and the defamation claim.

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Speaker 4: The standard for the defamation claim was clear and convincing evidence,

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Speaker 4: which is higher than the normal civil liability standard of

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Speaker 4: a preponderance more likely than not, but lower than the

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Speaker 4: burden of proof and a criminal case of proof beyond

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Speaker 4: a reasonable doubt. The jury found that that standard of

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Speaker 4: clear and convincing was established for her defamation claim, and

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Speaker 4: they awarded damages for the battery claim and damages for

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Speaker 4: the defamation claim separately.

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Speaker 2: You mentioned the short deliberations under three hours. Do you

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Speaker 2: think that's a result of the fact that Trump didn't put.

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Speaker 5: On a case.

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Speaker 4: It may have been. In part. It was probably a

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Speaker 4: reaction to the fact that there wasn't all that much

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Speaker 4: evidence for them to sort through, and if the Trump

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Speaker 4: side had put on a defense, there would have been

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Speaker 4: simply perhaps more evidence for them to go through. Instead,

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Speaker 4: they had to evaluate the witnesses and the evidence that

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Speaker 4: was presented to them, which was all from the plaintiff's side.

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Speaker 4: The plaintiff put on Miss Carroll's testimony, which was quite

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Speaker 4: vivid and detailed, and then the testimony of the two

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Speaker 4: friends whom she had called very soon after the attack,

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Speaker 4: one immediately afterward, that same night and the other one

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Speaker 4: within a day or two afterward. And those witnesses I

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Speaker 4: think were very important to rehabilitate Miss Carroll's credibility after

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Speaker 4: it was attacked on cross examination by Trump's lawyers, who

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Speaker 4: essentially suggested that she had fabricated her claim in twenty

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Speaker 4: nineteen when she wrote her book in order to gain

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Speaker 4: same and fortune by selling her book, and also because

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Speaker 4: of some kind of political bias against Trump once he

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Speaker 4: had already become president, and so to rehabilitate Miss Carroll's

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Speaker 4: credibility from that line of attack, the plaintiff was permitted

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Speaker 4: to put on those two friends to whom Carol had

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Speaker 4: given prior consistent statements about the attack, to show that

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Speaker 4: she had been making the same claim that she had

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Speaker 4: told the same story long before Trump was running for

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Speaker 4: president or was president, long before she was writing or

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Speaker 4: trying to sell a book, or had any motive of

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Speaker 4: the kind that the defense alleged to be telling this story.

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Speaker 4: So I think those two friends testimony was very important.

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Speaker 4: And then, of course the testimony of the two other

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Speaker 4: women who I mentioned a moment ago, who testified about

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Speaker 4: sexual assaults by Trump that were very consistent with the

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Speaker 4: kind of attack that Miss Carroll described, and that also

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Speaker 4: mister Trump, in his own words discussed on the Access

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Speaker 4: Hollywood tape.

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Speaker 2: Trump didn't appear in the courtroom at all during the trial,

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Speaker 2: and instead the jury saw bits of his videotaped deposition

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Speaker 2: that were select the plaintiff. Did that hurt his case?

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Speaker 2: I mean, does the jury say he doesn't even care

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Speaker 2: enough to show up.

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Speaker 4: It's hard to know exactly what the jury thought as

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Speaker 4: a consequence of Trump not showing up. I do think

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Speaker 4: that there is a risk that they thought that Trump

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Speaker 4: was not showing respect for the forum or for the

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Speaker 4: claim by not showing up. At the same time, he

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Speaker 4: may have done himself no favors had he been in

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Speaker 4: the courtroom if he exhibited certain behaviors or a demeanor

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Speaker 4: that communicated a similar message. So it's hard to say

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Speaker 4: exactly how that all shook out. I will say that

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Speaker 4: the deposition that was admitted it to evidence where Trump was,

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Speaker 4: for example, shown a photograph of Egene Carroll. He was

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Speaker 4: shaking her hand essentially on a receiving line, and he

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Speaker 4: misidentified her as his former wife, Marla Maples. I thought

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Speaker 4: was a devastating moment because he had been saying, oh,

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Speaker 4: she's not my type, as though that were a reason

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Speaker 4: why he wouldn't sexually assault her. But it certainly lied

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Speaker 4: the claim that she wasn't his type when he misidentified

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Speaker 4: her in a photographic as his former wife. And then

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Speaker 4: there was a devastating moment in the deposition as well,

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Speaker 4: where he's asked about the Access Hollywood tape and he

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Speaker 4: essentially said that what he had claimed on that tape

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Speaker 4: that stars could assault women and essentially get away with it,

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Speaker 4: and women would let you do that to them.

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Speaker 3: They would let you grab.

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Speaker 4: Them without consent. He said that that had been true historically,

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Speaker 4: and then he added on fortunately or unfortunately, and that

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Speaker 4: was just an extraordinary moment. The idea that he would

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Speaker 4: affirm that he thought that that was true, that stars

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Speaker 4: could do it, and that there was a way to

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Speaker 4: look at that as fortunate in some circumstances. I think

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Speaker 4: that that was just a terrible moment for the defense.

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Speaker 2: The plaintiff didn't ask for a specific sum. Do you

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Speaker 2: know where the jury got those numbers from?

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Speaker 4: There was an expert who testified for the plaintiff about

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Speaker 4: the amount of money it would take to repair her reputation,

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Speaker 4: and that I believe a professor of marketing who testified

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Speaker 4: that there was a range that she had calculated of

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Speaker 4: what it would cost to do essentially reputational repair, and

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Speaker 4: she estimated it would be on the low end, in

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Speaker 4: the high three hundred thousands of dollars, on the high

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Speaker 4: end two point seven million dollars. And so if you

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Speaker 4: look at what the jury awarded for damages, at least

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Speaker 4: for the defamation claim, I believe they gave one million

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Speaker 4: for compensatory damages not having to do with repairing her reputation,

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Speaker 4: and then one point seven million for reputational repair. And

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Speaker 4: then where they came up with the two million in

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Speaker 4: compensatory damages for the battery claim, I'm not sure They

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Speaker 4: also added on punitive damages of twenty thousand dollars for

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Speaker 4: the battery claim and two hundred and eighty thousand dollars

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Speaker 4: in punitive damages for the defamation claim, which is how

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Speaker 4: we get all together to five million dollars. But I

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Speaker 4: thought it was interesting that they chose the numbers that

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Speaker 4: they did, frankly, and that the punitive damages were relatively

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Speaker 4: insignificant given the overall total of the damages award. To me,

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Speaker 4: that suggested that they really did credit Miss Carroll's testimony

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Speaker 4: about how she had been harmed by the battery and

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Speaker 4: the consequences it had had on her life, and that

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Speaker 4: they didn't award an extraordinary amount in punitive damages. When

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Speaker 4: you think about it, it's really quite restrained. Twenty thousand

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Speaker 4: dollars in punitives on the battery charge and two hundred

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Speaker 4: and eighty thousand on the defamation charge suggests that this

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Speaker 4: was not a political verdict on Trump, but really about

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Speaker 4: compensating Miss Carroll for the harm she had suffered.

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Speaker 2: That struck me too that the punitives were quite low.

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Speaker 2: I want to go through some of the appellate issues

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Speaker 2: that Trump's lawyer, Joe Tekapina mentioned, so one was that

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Speaker 2: Egene Carroll should not have been allowed to play that

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Speaker 2: Access Hollywood recording for the jury. I'm wondering if you

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Speaker 2: think that's a strong point on appeal, don't.

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Speaker 4: I mean, in general, evidentiary rulings are subject to an

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Speaker 4: abusive discretion standard of review on appeal, and Judge Kaplan

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Speaker 4: wrote an opinion about why he was admitting the Access

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Speaker 4: Hollywood tape as well as the testimony of the two

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Speaker 4: other women about other assaults by Trump against them, and

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Speaker 4: so it's a well written, reasoned opinion, and he cites

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Speaker 4: the particular federal rule of evidence that permits evidence of

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Speaker 4: other sexual offenses by a defendant who's been charged in

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Speaker 4: a case, including in a civil case with offensive sexual conduct.

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Speaker 4: These are rules of evidence that are not frequently utilized

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Speaker 4: because very few cases involving sexual offenses are actually litigated

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Speaker 4: in federal courts. Those are overwhelmingly cases tried in state courts.

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Speaker 4: Most states do not have analogous rules of evidence that

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Speaker 4: are so permissive about admitting in other acts of a

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Speaker 4: sexual nature committed by a defendant, But the federal system

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Speaker 4: does have these special rules for cases involving sexual offenses,

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Speaker 4: and they are explicitly permissive in terms of allowing in

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Speaker 4: evidence of other sexual conduct and permitting a jury to

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Speaker 4: make inferences about a defendant's propensity to engage in such

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Speaker 4: conduct based on that prior conduct. So it's diametrically opposed

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Speaker 4: to how lawyers normally think about other act evidence and

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Speaker 4: the uses to which it can and can't be put

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Speaker 4: in litigation. So these are rules that apply only in

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Speaker 4: federal court and in very few staate jurisdictions that have

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Speaker 4: adopted similar rules, But they applied here, and I think

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Speaker 4: that really worked to Trump's disadvantage. But it also means

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Speaker 4: because the rules are so explicit and Judge Catherlin was

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Speaker 4: very clear and relying upon them, that it's hard for

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Speaker 4: me to see how in appellate court would overrule his decision.

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Speaker 5: There are also some others.

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Speaker 2: He raises the fact that Trump couldn't get a fair

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Speaker 2: trial from a Manhattan jury, and the decision to keep

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Speaker 2: the names of the jurors anonymous and barring the mention

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Speaker 2: of Carol's litigation financing from a major Democratic Party donor.

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Speaker 5: Do any of those strike you?

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Speaker 4: The anonymous jury question is I think an interesting one

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Speaker 4: in its novel, and my understanding is that Judge Kaplan

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Speaker 4: raised the issue and it was his idea to have

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Speaker 4: an anonymous DURYA don't believe that was something requested by

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Speaker 4: either party. So I mentioned it's interesting because it's novel.

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Speaker 4: I don't see that as being a particularly strong issue

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Speaker 4: on appeal. I think the defense would have to spell

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Speaker 4: out how they were prejudiced by the jury having been anonymized.

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Speaker 4: But that's the one that I think would potentially be

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Speaker 4: of most interest to the Circuit Court, although as I said,

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Speaker 4: I'm not sure that I see that it's particularly meritorious

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Speaker 4: on the issue of not being able to cross Jean

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Speaker 4: Carroll about the donor and bias. Again, I think that

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Speaker 4: ruling is going to be subject to abusive discretion, and

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Speaker 4: the defense really was permitted to probe bias, including political

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Speaker 4: bias of Missus Carroll aswell as the other one witness

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Speaker 4: is the plaintiff called. So even if the Napella Court

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Speaker 4: were to find their were error there, they would likely

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Speaker 4: find it to be harmless error, I think because that

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Speaker 4: issue was so thoroughly explored.

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Speaker 2: So it sounds like winning an appeal would be an

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Speaker 2: uphill battle.

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Speaker 4: I think so mentioning.

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Speaker 5: The secrecy of the jurors.

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Speaker 2: So, now that the trials concluded, obviously the jurors are

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Speaker 2: free to identify themselves publicly, but the judge encouraged them

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Speaker 2: not to do so. Quote, my advice to you is

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Speaker 2: not to identify yourselves, not now and not for a

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Speaker 2: long time, he said after the verdict. That's pretty unusual,

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Speaker 2: Isn't it very unusual for a.

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Speaker 5: Judge to say?

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Speaker 4: It is very unusual? And, as I said a moment ago,

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Speaker 4: swearing in a jury, using an anonymous jury in a

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Speaker 4: civil case is extremely unusual as well. So I see

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Speaker 4: his instructions to the jurors once they were discharged about

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Speaker 4: maintaining the privacy of their identities. I think it's consistent

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Speaker 4: with that decision on the front end to use an

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Speaker 4: anonymous jury. I think that there were very good reasons

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Speaker 4: for Judge Kaplan to do what he did here and

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Speaker 4: to give that instruction to the jury at the end,

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Speaker 4: given the social media postings by President Trump in this

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Speaker 4: case and in other cases where he's essentially urged his

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Speaker 4: supporters to take action and defend him in a way

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Speaker 4: that can prove dangerous to those who he's identified as

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Speaker 4: his enemies as political enemies. So I think that there

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Speaker 4: is a very good record upon which the judge was

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Speaker 4: drawing when he chose to make the jury anonymous, and

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Speaker 4: when he encouraged the jurors to maintain that anonymity going forward.

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Speaker 2: Egene Carol said that through this trial they demolished the

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Speaker 2: concept of the perfect victim who always screams, always reports

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Speaker 2: to police, always makes notes of when it happened. But

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Speaker 2: you know, a juryvert has no precedential value. Do you

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Speaker 2: think that this will really make a difference in future

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Speaker 2: rape cases.

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Speaker 4: It's hard to say. I think that the fact that

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Speaker 4: this case got so much publicity may have an impact

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Speaker 4: in terms of affecting the public consciousness, so that future

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Speaker 4: jurors who are impaneled in future cases involving allegations of

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Speaker 4: sexual assault may remember this case and may remember that

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Speaker 4: the plaintiffs prevailed, And it may be part of a

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Speaker 4: much larger cultural conversation that may take years to percolate

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Speaker 4: and for there to be significant impacts in courtrooms. But

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Speaker 4: I do think that it is a significant event in

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Speaker 4: terms of potentially shaping people's consciousness about how survivors of

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Speaker 4: sexual assault behave in the moment of the assault, right

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Speaker 4: the allegation, you know, widen new scream, in the moments afterward,

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Speaker 4: like why she didn't go to police, and then in

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Speaker 4: the years afterwards, because of course, part of what mister

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Speaker 4: Trump's lawyers suggested was that she had essentially been too

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Speaker 4: happy in the years afterward. So I think that this

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Speaker 4: case does perhaps mark a significant and turning point in

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Speaker 4: public understanding about the different ways in which somebody who

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Speaker 4: has experienced sexual assault might behave at all those points

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Speaker 4: in time, in the moment, immediately afterward, and in the

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Speaker 4: years to come.

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Speaker 2: Thanks so much for your insights, Jessica. That's Professor Jessica

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Speaker 2: Roth of Cardozo Law School. Massachusetts attorneys are advising businesses

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Speaker 2: to rethink the way they pay and fire employees in

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Speaker 2: the wake of a state top court decision that puts

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Speaker 2: them on the hook for triple damages when they're late

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Speaker 2: on a paycheck. Compliance trainings for managers and monitoring payroll

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Speaker 2: providers are just some of the things companies are doing

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Speaker 2: to mitigate legal risk after the Massachusetts Supreme Judicial courts

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Speaker 2: game changing twenty twenty two ruling. Companies are still grappling

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Speaker 2: with that ruling one year later joining me is Michelle

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Speaker 2: Dia Lavera, a director for Kenny and Sam's that represents

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Speaker 2: businesses in employment disputes.

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Speaker 5: So us about this decision?

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Speaker 3: Sure, I'd be happy to So this was a decision

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Speaker 3: that was issued by the Massachusetts highest Court, the SJC.

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Speaker 3: It was a decision that would It was issued in

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Speaker 3: April of twenty twenty two. It's Ruder versus City of

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Speaker 3: Misuins And basically, this decision held that an employer that

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Speaker 3: is late on wages that an employee earns is automatically

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Speaker 3: liable for treble damages plus attorneys fees and costs. It

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Speaker 3: is a groundbreaking decision because before this decision was issued,

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Speaker 3: an employer arguably could avoid being hit with treble damages,

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Speaker 3: attorney's fees and costs if it paid the employee in

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Speaker 3: full for all wages earned before the employee filed a complaint.

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Speaker 3: And therefore there was some wiggle room and an employer

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Speaker 3: could avoid being hit with signialificant liqu data damages via

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Speaker 3: trouble damages attorney's season costs. So this decision changed that dramatically.

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Speaker 3: And now if an employer is lated, and it could

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Speaker 3: be a day, it could be two days. It doesn't

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Speaker 3: really matter how long the employer is late. If the

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Speaker 3: wages are paid late, the employers automatically on the hook

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Speaker 3: for treble damages attorney's season costs.

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Speaker 2: So was this the court interpreting a statute or was

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Speaker 2: there another reason behind the decision?

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Speaker 5: You know the why of the triple damages.

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Speaker 3: This was the court interpreting a statute that has been

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Speaker 3: in the books for a while. But, like I mentioned earlier,

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Speaker 3: even though the statute provides for attorney fees and treble

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Speaker 3: damages and the event of late paid wages, employers could

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Speaker 3: do away with that by making the employee whole before

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Speaker 3: an action was filed and before a complaint was filed.

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Speaker 3: So it was the court interpreting a pre existing statute.

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Speaker 2: Does the reason for the non payment of wages matter?

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Speaker 2: Say it's something beyond the control of the employer, like

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Speaker 2: a paycheck that's lost in the mail.

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Speaker 3: Great question. It does not matter. It is a no

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Speaker 3: mercy statute. It is strict liability for the employer, and

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Speaker 3: the reason does not matter. It could be a situation

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Speaker 3: in which the employer has no idea that the payroll

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Speaker 3: provider made an error, or as you mentioned, a check

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Speaker 3: gets lost in the mail, or could be you know,

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Speaker 3: a clerical mistake that happens and for whatever reason, there's

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Speaker 3: an error made on a paycheck that is issued to

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Speaker 3: an employee and the employee is short a certain amount

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Speaker 3: of wages on that check. Regardless of the reason, it

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Speaker 3: does not matter because it really is a no mercy statute.

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Speaker 3: It's a no mercy decision that employers are stuck with

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Speaker 3: and trying to, you know, implement best practices and protocols

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Speaker 3: to avoid potential liability under the wayeck because you know,

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Speaker 3: depending on how much money an employee makes, depending on

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Speaker 3: you know, how many employees are paid late, the damages

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Speaker 3: and the monetary amount and issue can quickly skyrocket and

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Speaker 3: create massive exposure for an employer.

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Speaker 2: So what was the general reaction from management when this

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Speaker 2: decision came out?

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Speaker 5: I mean, was there panic?

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Speaker 2: Was it okay, we can do that, no problem.

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Speaker 3: The reaction is shocked, and the reaction is dismay, And

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Speaker 3: the reaction is, you know, how can we make the

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Speaker 3: things work and what can we do to avoid human error?

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Speaker 3: Because we're human, right, So the people who are entering

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Speaker 3: the time, sure, maybe they're relying on software to enter

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Speaker 3: time but there there often is a human element involved

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Speaker 3: when somebody is being paid and people make mistakes. So

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Speaker 3: the fact that employers now are stuck with this no

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Speaker 3: mercy decision, no mercy statute. It is talking and employers

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Speaker 3: still struggle with it when issues arise and there are

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Speaker 3: a very good reasons why there was a mistake. There's

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Speaker 3: a very good reason why. You know, somebody misread something

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Speaker 3: that was on a timesheet that was handwritten and misinterpreted it,

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Speaker 3: and it really it really doesn't matter. So this is

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Speaker 3: a decision. It's really difficult for employers to deal with it,

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Speaker 3: understand it, and they're trying to work really hard to

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Speaker 3: again avoid liability under the statue.

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Speaker 2: So, say an employer wants to fire someone, something comes up,

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Speaker 2: they found out that the employee did something egregious and

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Speaker 2: they want the employee off the premises that moment, do

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Speaker 2: they have to hand them a paycheck at the same time.

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Speaker 3: So if there is something that happens and an employee

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Speaker 3: needs to be off the premise asap, what needs to

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Speaker 3: happen is one of two things. One the employer would

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Speaker 3: need to have a check in hand to pay that

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Speaker 3: person on the day of termination, or two if that's

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Speaker 3: not doable for whatever reason, and there could be, you know,

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Speaker 3: legitimate reasons why an employer just can't have a check

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Speaker 3: available on that day, what the employer would need to

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Speaker 3: do to avoid liability under this statute would be to

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Speaker 3: suspend that employee, and it could be without pay. You

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Speaker 3: can suspend thout pay through the effective date of the termination,

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Speaker 3: and then the effective date of determination needs to be

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Speaker 3: the day on which the employer can ensure that they

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Speaker 3: will have a check in their hands available to pay

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Speaker 3: that employee, or payment can be made via direct deposit.

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Speaker 3: It doesn't really matter. It could be either or. But

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Speaker 3: the ability to just terminate somebody on the spot and

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Speaker 3: not be able to pay them in full on the

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Speaker 3: date of determination, regardless of the reason for the termination,

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Speaker 3: that ability nowadays has sort of been depleted if an

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Speaker 3: employer wants to avoid liability under this decision and under

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Speaker 3: the Massachusetts WAGA.

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Speaker 2: So I don't know if there are any stats about this,

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Speaker 2: but have you seen less on the spot firings then.

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Speaker 3: Yes, I have seen less on the spot firings. And

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Speaker 3: what I have been advising and encouraging and recommending that

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Speaker 3: my clients do is have management be adequately trained. So

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Speaker 3: have your managers undergo management training so that they understand

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Speaker 3: the importance of following this protocol of a suspension without

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Speaker 3: pay or an administrative leave without pay pending the effective

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Speaker 3: state of termination. And companies are being more careful with

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Speaker 3: that in order to avoid liability under this statute.

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Speaker 2: And I know you've said that some employers are more

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Speaker 2: closely overseeing the payroll providers.

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Speaker 3: That's exactly right, because oftentimes what happens is an employer

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Speaker 3: will submit the payroll information to the payroll provider and

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Speaker 3: then will just rely on the payroll provider to do

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Speaker 3: the right thing and pay the employees the way that

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Speaker 3: they need to be paid. But there have been mistakes

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Speaker 3: that have happened on the payroll providers, and really through

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Speaker 3: no fault of the payrolld provider. What I mean is

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Speaker 3: they're not intentionally trying to make the mistake, but human

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Speaker 3: error occurs, clerical error occurs, and therefore employers are now

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Speaker 3: encouraged and are developing practice of overseeing the payroll provider

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Speaker 3: the way in which these wages are paid to be

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Speaker 3: sure that the wages are being paid correctly and that

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Speaker 3: there are no mistakes and that wage payments aren't canceled

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Speaker 3: or made, you know, in a way that isn't consistent

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Speaker 3: with what the employees should be paid for the wages

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Speaker 3: earned in that pay period.

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Speaker 2: So I was reading about this businesses speed up the

442
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Speaker 2: whole payroll process.

443
00:26:04,240 --> 00:26:08,000
Speaker 3: I think they can, and it's something that each company

444
00:26:08,000 --> 00:26:10,639
Speaker 3: would have to work out with the payroll provider. In

445
00:26:10,680 --> 00:26:13,800
Speaker 3: other words, a payroll provider typically will have a date

446
00:26:14,200 --> 00:26:16,719
Speaker 3: by which the information needs to be submitted so that

447
00:26:16,760 --> 00:26:20,320
Speaker 3: payroll can be made via X day, and so businesses

448
00:26:20,359 --> 00:26:23,160
Speaker 3: need to work closely with the payroll providers to ensure

449
00:26:23,240 --> 00:26:26,000
Speaker 3: that not only that all wages are being paid, but

450
00:26:26,080 --> 00:26:29,240
Speaker 3: that the wages are being paid to employees within six

451
00:26:29,400 --> 00:26:32,560
Speaker 3: days of the conclusion of the pay period within which

452
00:26:32,600 --> 00:26:35,760
Speaker 3: the wages are earned. Because this is also an issue

453
00:26:35,800 --> 00:26:39,760
Speaker 3: for your current active employees, because a statute for the

454
00:26:39,760 --> 00:26:43,159
Speaker 3: most part, with a few exceptions, requires that employees be

455
00:26:43,280 --> 00:26:46,240
Speaker 3: paid within six days of the conclusion of the pay period,

456
00:26:46,680 --> 00:26:51,280
Speaker 3: and it is imperative that all companies are ensuring that

457
00:26:51,280 --> 00:26:53,800
Speaker 3: that happens on a timely manner.

458
00:26:54,320 --> 00:26:57,680
Speaker 2: Have more employees been suing since this decision?

459
00:26:58,520 --> 00:27:02,320
Speaker 3: Yes, more employers at least for in our practice. And

460
00:27:02,400 --> 00:27:05,440
Speaker 3: what I have seen here in my practice in my firm. Yes,

461
00:27:05,480 --> 00:27:08,959
Speaker 3: we are seeing our clients be sued for non payment

462
00:27:09,000 --> 00:27:14,320
Speaker 3: of wages and sometimes for minimal amounts of the late payments.

463
00:27:14,320 --> 00:27:16,399
Speaker 3: And when I mean minimal, I'm talking about you know,

464
00:27:16,440 --> 00:27:20,240
Speaker 3: a few thousands of dollars, not hundreds of thousands of dollars.

465
00:27:20,720 --> 00:27:23,720
Speaker 3: We're seeing more lawsuits, We're seeing more litigation, We're seeing

466
00:27:23,720 --> 00:27:29,400
Speaker 3: more demand letters because there's plaintive lawyers, you know, who

467
00:27:29,440 --> 00:27:32,040
Speaker 3: are we're sending demand letters or who are filing these

468
00:27:32,160 --> 00:27:36,960
Speaker 3: complaints assuming that the late payment is clear, you know

469
00:27:37,000 --> 00:27:40,160
Speaker 3: that there's there's clear evidence that that the wages were

470
00:27:40,280 --> 00:27:43,320
Speaker 3: paid late. The fact that a plaintiff side lawyer will

471
00:27:43,320 --> 00:27:46,200
Speaker 3: be able to be to recover attorneys fees, I think

472
00:27:46,400 --> 00:27:49,440
Speaker 3: has played a role in this as well, and they're

473
00:27:49,480 --> 00:27:52,760
Speaker 3: just alleging, you know, trouble damages plus payment of attorneys fees.

474
00:27:53,400 --> 00:27:56,400
Speaker 2: In the opinion, was there any talk of like why

475
00:27:56,440 --> 00:28:02,080
Speaker 2: it's important to protect employees in this way.

476
00:28:02,200 --> 00:28:05,280
Speaker 3: Yes, there is a discussion in the opinion about that,

477
00:28:05,440 --> 00:28:10,480
Speaker 3: and basically the discussion centers on the fact that employees

478
00:28:10,600 --> 00:28:14,480
Speaker 3: are relying on their wages to make a living and

479
00:28:14,520 --> 00:28:18,520
Speaker 3: when you're dealing with employees who live pay paycheck by paycheck,

480
00:28:18,840 --> 00:28:22,320
Speaker 3: it is important that those employees be paid timely, and

481
00:28:22,760 --> 00:28:26,200
Speaker 3: there's there's really no excuse for an employer to withhold

482
00:28:26,720 --> 00:28:31,320
Speaker 3: wages that an employee earns unnecessarily so or beyond the

483
00:28:31,400 --> 00:28:34,879
Speaker 3: time within which you know, the employees should have been paid.

484
00:28:35,359 --> 00:28:38,960
Speaker 3: So the discussion centers on, you know, protecting employees, protecting

485
00:28:38,960 --> 00:28:41,800
Speaker 3: employees well being, and ensure that they're timely paid for

486
00:28:41,880 --> 00:28:45,480
Speaker 3: wages that they're earned, because again, employees for the most part,

487
00:28:45,520 --> 00:28:48,680
Speaker 3: are relying on payment of their wages to make a

488
00:28:48,720 --> 00:28:51,880
Speaker 3: living and provide for their for their families, and the

489
00:28:51,920 --> 00:28:54,600
Speaker 3: case talks about, you know, the need for the employee

490
00:28:54,600 --> 00:28:59,719
Speaker 3: to pay for housing, transportation, food, clothing, tuition, medical expenses,

491
00:29:00,080 --> 00:29:03,400
Speaker 3: et cetera. So employees can really be harmed if they

492
00:29:03,440 --> 00:29:05,200
Speaker 3: are paid late.

493
00:29:05,640 --> 00:29:06,560
Speaker 5: Any final thoughts.

494
00:29:07,000 --> 00:29:08,800
Speaker 3: I think the only final thought that I'll throw in

495
00:29:08,840 --> 00:29:12,720
Speaker 3: there is that given the decision and the implications that

496
00:29:12,840 --> 00:29:16,240
Speaker 3: stem from the decision, the time is ripe for employers

497
00:29:16,280 --> 00:29:21,719
Speaker 3: to be reviewing bonus plans, commission plans, and any type

498
00:29:21,760 --> 00:29:25,600
Speaker 3: of compensation that an employee receives that could be construed

499
00:29:25,680 --> 00:29:29,880
Speaker 3: as a wage under the Massachusetts Wage Act to ensure

500
00:29:29,920 --> 00:29:34,400
Speaker 3: that not only are those plans legally compliant, but to

501
00:29:34,600 --> 00:29:39,160
Speaker 3: ensure that to the extent a form of compensation constitution

502
00:29:39,400 --> 00:29:42,160
Speaker 3: could constitute a wage under the statues, that they have

503
00:29:42,320 --> 00:29:46,280
Speaker 3: processes and protocols in place to ensure timely payment, and

504
00:29:46,440 --> 00:29:48,800
Speaker 3: like I said, you know, to ensure that those plans

505
00:29:48,880 --> 00:29:50,560
Speaker 3: are compliant with the statue.

506
00:29:51,000 --> 00:29:53,360
Speaker 2: Thanks so much for being on the show, Michelle. That's

507
00:29:53,400 --> 00:29:57,239
Speaker 2: Michelle di'ela vera, a director for Kenny and Sam's. And

508
00:29:57,280 --> 00:29:59,440
Speaker 2: that's it for this edition of The Bloomberg Law Show.

509
00:30:00,000 --> 00:30:02,120
Speaker 2: Remember you can always get the latest legal news on

510
00:30:02,200 --> 00:30:06,480
Speaker 2: our Bloomberg Law podcasts. You can find them on Apple Podcasts, Spotify,

511
00:30:06,640 --> 00:30:11,680
Speaker 2: and at www dot Bloomberg dot com, slash podcast Slash Law,

512
00:30:12,080 --> 00:30:14,680
Speaker 2: and remember to tune into The Bloomberg Law Show every

513
00:30:14,720 --> 00:30:18,640
Speaker 2: weeknight at ten pm Wall Street Time. I'm June Grosso,

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00:30:18,760 --> 00:30:20,360
Speaker 2: and you're listening to Bloomberg