1
00:00:00,480 --> 00:00:05,680
Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

2
00:00:06,559 --> 00:00:09,920
Speaker 1: Many businesses are taking steps to support their workers during

3
00:00:09,920 --> 00:00:13,680
Speaker 1: protests against police brutality after the death of George Floyd.

4
00:00:14,120 --> 00:00:17,439
Speaker 1: But on the flip side, workers have few legal protections

5
00:00:17,480 --> 00:00:21,040
Speaker 1: if an employer decides to fire them for protesting outside

6
00:00:21,040 --> 00:00:23,960
Speaker 1: of work. Joining me is Mark ros Saying, a professor

7
00:00:23,960 --> 00:00:26,440
Speaker 1: at the City University of New York School of Law.

8
00:00:27,120 --> 00:00:32,919
Speaker 1: In general, what should employers be doing for workers at

9
00:00:32,960 --> 00:00:36,879
Speaker 1: these times of social unrest, even if the workers are

10
00:00:36,920 --> 00:00:43,320
Speaker 1: at home. Well, First of all, well, employers must recognize

11
00:00:43,400 --> 00:00:49,040
Speaker 1: the tremendous trauma with the convergence of the COVID crisis,

12
00:00:50,000 --> 00:00:56,040
Speaker 1: and I would say the structural racism crisis, said white

13
00:00:56,040 --> 00:01:01,040
Speaker 1: America has finally learned and woken up to. I'm a

14
00:01:01,080 --> 00:01:04,640
Speaker 1: white person, so I'm saying that from my own perspective. Also,

15
00:01:05,040 --> 00:01:08,759
Speaker 1: although I have been studying this field for many decades,

16
00:01:09,560 --> 00:01:14,080
Speaker 1: but I think it's really important that employers, as corporate citizens,

17
00:01:14,160 --> 00:01:17,959
Speaker 1: have to recognize what is going on in this tremendous

18
00:01:18,000 --> 00:01:23,480
Speaker 1: inflection point in history and recognize that their own employees

19
00:01:23,520 --> 00:01:28,559
Speaker 1: are being impacted by this trauma, particularly their employees of color,

20
00:01:29,280 --> 00:01:32,479
Speaker 1: and so should they be reaching out to them? Should

21
00:01:32,520 --> 00:01:36,280
Speaker 1: they be offering programs? You know, what should they do

22
00:01:36,520 --> 00:01:40,160
Speaker 1: to send a signal or to help? Yes, first of all,

23
00:01:40,319 --> 00:01:44,720
Speaker 1: they should be reaching out um and uh. The employers

24
00:01:44,760 --> 00:01:50,200
Speaker 1: and companies should be training their managers who are interacting

25
00:01:50,320 --> 00:01:54,800
Speaker 1: with their line employees and say you must really reach

26
00:01:54,840 --> 00:01:57,800
Speaker 1: out to them and don't just say how are you doing,

27
00:01:57,920 --> 00:02:02,640
Speaker 1: but specifically ask how are you feeling? Is the COVID

28
00:02:02,760 --> 00:02:08,240
Speaker 1: crisis impacting you right now? Is all the demonstrations in

29
00:02:08,280 --> 00:02:11,359
Speaker 1: the streets and all the news impacting you right now?

30
00:02:11,480 --> 00:02:14,400
Speaker 1: How can I help you? Do you need some type

31
00:02:14,400 --> 00:02:19,200
Speaker 1: of accommodation? That's one thing. Number two. I think that companies,

32
00:02:19,280 --> 00:02:25,279
Speaker 1: many companies have employee system plans that allow for employee

33
00:02:25,320 --> 00:02:29,720
Speaker 1: to reach out to a counselor to get counseling. But

34
00:02:29,919 --> 00:02:32,280
Speaker 1: I think all companies really have to look at that

35
00:02:32,520 --> 00:02:37,280
Speaker 1: programs are are they sufficient? Are they really addressing the

36
00:02:37,840 --> 00:02:42,440
Speaker 1: huge trauma, the psychological trauma that people are feeling. And

37
00:02:42,480 --> 00:02:45,920
Speaker 1: we now know that the trauma is not just current,

38
00:02:46,040 --> 00:02:51,120
Speaker 1: but it is intergenerational, particularly for communities of color and

39
00:02:51,200 --> 00:02:55,600
Speaker 1: more specifically for the African American community because we're now

40
00:02:55,720 --> 00:03:00,000
Speaker 1: beginning to understand that go back four hundred years from

41
00:03:00,040 --> 00:03:03,560
Speaker 1: the Middle Passage of bringing enslaved people to this country,

42
00:03:03,680 --> 00:03:08,640
Speaker 1: to the slavery period, to the Jim Crow period, to

43
00:03:08,919 --> 00:03:13,120
Speaker 1: the period where the United States government and state governments

44
00:03:13,120 --> 00:03:19,160
Speaker 1: were providing benefits primarily to the white communities and discriminating

45
00:03:19,240 --> 00:03:23,200
Speaker 1: against communities of color. So today we recognize that there

46
00:03:23,240 --> 00:03:28,160
Speaker 1: is a tremendous disparity in wealth and an ownership, and

47
00:03:28,240 --> 00:03:33,040
Speaker 1: it has created a tremendous amount of trauma in people

48
00:03:33,120 --> 00:03:38,119
Speaker 1: of color. So now suppose someone says, you know, it's

49
00:03:38,120 --> 00:03:40,960
Speaker 1: too much for me or I have to take care

50
00:03:40,960 --> 00:03:45,880
Speaker 1: of my family. Can they get paid leave, paid medical leave,

51
00:03:46,040 --> 00:03:50,200
Speaker 1: or paid leave of any kind. Well, of course, you know,

52
00:03:50,280 --> 00:03:55,600
Speaker 1: in terms of what statutory and legal programs are set up.

53
00:03:55,960 --> 00:03:59,480
Speaker 1: There are some states where there is paid leaves. But

54
00:03:59,640 --> 00:04:02,520
Speaker 1: to pay leaves is generally to take care of a

55
00:04:02,640 --> 00:04:05,760
Speaker 1: family member or to take care of yourself. But but

56
00:04:05,920 --> 00:04:09,120
Speaker 1: that's limited to a number, just a handful of states.

57
00:04:09,600 --> 00:04:14,080
Speaker 1: There is no national program. But what I'm advising employers

58
00:04:14,160 --> 00:04:17,440
Speaker 1: now is to say, as a corporate citizen, this is

59
00:04:17,480 --> 00:04:21,200
Speaker 1: a point in history where you have to really say, Okay,

60
00:04:21,279 --> 00:04:27,680
Speaker 1: does this very important employee need some additional help, and

61
00:04:27,720 --> 00:04:31,240
Speaker 1: can we provide paid leaves? And so I think companies

62
00:04:31,279 --> 00:04:34,839
Speaker 1: really should look inward and say, yes, this is very

63
00:04:34,880 --> 00:04:38,680
Speaker 1: important to do at this point and develop these programs.

64
00:04:39,240 --> 00:04:42,800
Speaker 1: Companies won't be getting any assistance from this the states

65
00:04:43,200 --> 00:04:47,960
Speaker 1: or is it just dependent on your own insurance program? Well,

66
00:04:48,000 --> 00:04:50,440
Speaker 1: a number of states and you're probably familiar with it

67
00:04:50,600 --> 00:04:54,839
Speaker 1: during the COVID period now have said, okay, if you

68
00:04:54,960 --> 00:04:58,080
Speaker 1: have a paid leave program for some employees but not

69
00:04:58,240 --> 00:05:01,720
Speaker 1: other employees, you must give it to a everybody. But generally,

70
00:05:02,600 --> 00:05:05,320
Speaker 1: what this has really shown is that we really do

71
00:05:05,680 --> 00:05:11,279
Speaker 1: need a paid leave program for all groups of workers,

72
00:05:11,279 --> 00:05:15,880
Speaker 1: similar to what most other industrialized countries, certainly the European

73
00:05:16,000 --> 00:05:19,640
Speaker 1: nations but also a number of Asian countries also have

74
00:05:19,800 --> 00:05:23,520
Speaker 1: been providing to their employees and to their citizens. And

75
00:05:23,600 --> 00:05:28,200
Speaker 1: so the COVID crisis has really put forward in front

76
00:05:28,240 --> 00:05:32,440
Speaker 1: of our eyes all the inequities where the so called

77
00:05:32,520 --> 00:05:36,039
Speaker 1: essential workers that were we are now celebrating that they're

78
00:05:36,080 --> 00:05:39,880
Speaker 1: helping those of us who have the privilege like myself

79
00:05:39,920 --> 00:05:43,200
Speaker 1: to be able to work at home on computers and

80
00:05:43,400 --> 00:05:47,480
Speaker 1: to continue getting my pay. And I have paid sickly

81
00:05:47,600 --> 00:05:51,560
Speaker 1: through through by employer. We are recognizing that many of

82
00:05:51,560 --> 00:05:55,400
Speaker 1: these center workers, the lower wage workers, and mostly people

83
00:05:55,400 --> 00:05:58,719
Speaker 1: of color, many immigrants, do not have these benfits, and

84
00:05:58,800 --> 00:06:01,920
Speaker 1: so it's the time for us to re examine moving

85
00:06:02,000 --> 00:06:05,799
Speaker 1: forward whether we want a society that is really living

86
00:06:05,920 --> 00:06:10,000
Speaker 1: up to what the Constitution put forward in equality. Fool

87
00:06:10,640 --> 00:06:14,280
Speaker 1: Coming up next? Can an employer fire you for engaging

88
00:06:14,320 --> 00:06:17,599
Speaker 1: in protests? I'm jun Brasso and this is the bird

89
00:06:19,640 --> 00:06:22,480
Speaker 1: I've been talking to Professor marrickros Saying of the City

90
00:06:22,560 --> 00:06:25,839
Speaker 1: University of New York School of Law about steps businesses

91
00:06:25,839 --> 00:06:29,200
Speaker 1: are taking to support their workers during this time. How

92
00:06:29,279 --> 00:06:34,320
Speaker 1: far behind other countries as far as workers rights in

93
00:06:34,400 --> 00:06:40,960
Speaker 1: this area is the US? We are way behind other countries.

94
00:06:41,000 --> 00:06:43,800
Speaker 1: And if we just examine, you know, the countries that

95
00:06:43,880 --> 00:06:47,159
Speaker 1: we have interacted with, that we trade with more the

96
00:06:47,920 --> 00:06:51,039
Speaker 1: European Union countries that I'm not just talking about the

97
00:06:51,080 --> 00:06:57,640
Speaker 1: Scandinavian countries. Many people will say, well, of course, Denmark, Sweden, Finland, Norway,

98
00:06:57,800 --> 00:07:02,760
Speaker 1: they're different. They they've had a kind of social democracy. Um.

99
00:07:02,800 --> 00:07:05,560
Speaker 1: But if we look at Germany, if we look at Spain,

100
00:07:05,680 --> 00:07:09,400
Speaker 1: if we look at Italy, um, all these countries have

101
00:07:09,600 --> 00:07:14,960
Speaker 1: paid leaf programs. They differ somewhere, UM, but they they

102
00:07:15,200 --> 00:07:20,080
Speaker 1: have many programs that benefit all of their employees much

103
00:07:20,240 --> 00:07:22,520
Speaker 1: more than we do. And of course, if you look

104
00:07:22,520 --> 00:07:25,960
Speaker 1: at the health statistics we have been even before the

105
00:07:26,000 --> 00:07:29,119
Speaker 1: COVID crisis, we have been way behind between in terms

106
00:07:29,120 --> 00:07:33,480
Speaker 1: of instant mortality rates and maternal mortality rates during the

107
00:07:33,680 --> 00:07:38,640
Speaker 1: pregnancy and childbirth, we are way behind. So now let's

108
00:07:38,680 --> 00:07:42,560
Speaker 1: turn to another concern in this area, and that is

109
00:07:43,000 --> 00:07:46,760
Speaker 1: so a lot of people are protesting. Can you be

110
00:07:46,920 --> 00:07:51,000
Speaker 1: fired if your employer finds out you've been protesting peacefully

111
00:07:51,240 --> 00:07:54,280
Speaker 1: and they don't like the look of it. There is

112
00:07:54,320 --> 00:07:59,320
Speaker 1: no federal protection to people who are protesting legally, except

113
00:07:59,400 --> 00:08:02,760
Speaker 1: if you are are a public employee because you have

114
00:08:02,920 --> 00:08:08,200
Speaker 1: limited constitutional rights. But primarily the constitution does not apply

115
00:08:08,400 --> 00:08:13,040
Speaker 1: to private sector employees. There are a few states that

116
00:08:13,120 --> 00:08:20,560
Speaker 1: have statutes that prohibit employers from disciplining workers for outside

117
00:08:20,600 --> 00:08:26,400
Speaker 1: activity lawful outside activity, um, California, New York, New Jersey,

118
00:08:26,440 --> 00:08:30,120
Speaker 1: a few states, probably a few more. But this is

119
00:08:30,160 --> 00:08:33,120
Speaker 1: something that I think that employers should look at very

120
00:08:33,200 --> 00:08:37,239
Speaker 1: carefully and recognize that this is once again an inflection

121
00:08:37,280 --> 00:08:42,600
Speaker 1: point in history where people are going out and demanding

122
00:08:42,880 --> 00:08:48,559
Speaker 1: really structural changes not only at the workplace but throughout society.

123
00:08:49,000 --> 00:08:53,000
Speaker 1: And I think that it would be beneficial to companies

124
00:08:53,040 --> 00:08:57,040
Speaker 1: to recognize that they should participate in trying to make

125
00:08:57,080 --> 00:09:01,920
Speaker 1: these structural reforms so that their employees can be fully

126
00:09:01,960 --> 00:09:05,680
Speaker 1: contributing employees and that we could all be part of

127
00:09:05,679 --> 00:09:09,840
Speaker 1: the society that is moving to heal as opposed to

128
00:09:09,920 --> 00:09:13,679
Speaker 1: the tremendous divisions that we have. So is there a

129
00:09:13,720 --> 00:09:18,679
Speaker 1: difference if an employee, let's say, is arrested during a protest.

130
00:09:18,720 --> 00:09:21,120
Speaker 1: Does that make a difference even in those states that

131
00:09:21,240 --> 00:09:26,959
Speaker 1: have laws about this, Well, you know generally those states

132
00:09:26,960 --> 00:09:30,360
Speaker 1: would say we were talking about lawful activity. Um, But

133
00:09:30,440 --> 00:09:34,240
Speaker 1: we have to be very careful about examining the arrest

134
00:09:34,360 --> 00:09:36,480
Speaker 1: right now. First of all, there's a legal process that

135
00:09:36,559 --> 00:09:39,960
Speaker 1: has to go through. And as we know that, there

136
00:09:39,960 --> 00:09:44,920
Speaker 1: have been many instances of unlawful activity by the law

137
00:09:45,040 --> 00:09:49,640
Speaker 1: enforcement agencies. For instance, in an example in New York

138
00:09:49,760 --> 00:09:53,960
Speaker 1: City in the Bronx last week, there was a peaceful

139
00:09:54,000 --> 00:09:58,319
Speaker 1: demonstration and there were legal observice, lawyers and law students

140
00:09:58,480 --> 00:10:02,240
Speaker 1: who were clearly at identified and the mayor's order to

141
00:10:02,400 --> 00:10:07,440
Speaker 1: the law enforcement agency, the NYPD was these legal observers

142
00:10:07,559 --> 00:10:09,960
Speaker 1: have a right to be looking at what's going on.

143
00:10:10,840 --> 00:10:14,520
Speaker 1: Ten of them were arrested. That's an unlawful arrest. But

144
00:10:14,679 --> 00:10:17,480
Speaker 1: until the legal process goes on, and some of those

145
00:10:17,880 --> 00:10:22,000
Speaker 1: lawyers might be working for different companies and they certainly

146
00:10:22,040 --> 00:10:26,760
Speaker 1: should not be disciplined for that type of activity. There

147
00:10:26,800 --> 00:10:29,280
Speaker 1: was an incident in Central Park that got a lot

148
00:10:29,280 --> 00:10:33,600
Speaker 1: of publicity where a woman called police after an African

149
00:10:33,640 --> 00:10:36,200
Speaker 1: American man asked her to put her dog on a leash,

150
00:10:36,240 --> 00:10:40,800
Speaker 1: which is required in New York. She was fired. Is

151
00:10:40,840 --> 00:10:44,679
Speaker 1: that kind of firing permissible? Can she appeal that? In

152
00:10:44,760 --> 00:10:50,160
Speaker 1: any way? It is permissible? What what she actually did

153
00:10:50,440 --> 00:10:53,920
Speaker 1: might not be unlawful, although I noticed that the state

154
00:10:54,280 --> 00:10:59,880
Speaker 1: legislatures new state legislature yesterday pass some legislation which would

155
00:11:00,240 --> 00:11:04,000
Speaker 1: cause that type of activity be the wilful in the future.

156
00:11:04,040 --> 00:11:07,880
Speaker 1: If you call nine one one and reports something that

157
00:11:08,080 --> 00:11:11,319
Speaker 1: is not true, that that would be a violation. That's

158
00:11:11,360 --> 00:11:15,319
Speaker 1: criminal law. It's not so clear that that was a violation,

159
00:11:15,440 --> 00:11:17,839
Speaker 1: but there might have been a violation. But yes, an

160
00:11:17,840 --> 00:11:23,440
Speaker 1: employer could discipline and discharge that employee. That particular employer

161
00:11:23,559 --> 00:11:28,360
Speaker 1: was concerned about their reputational harm with the publicity, uh,

162
00:11:28,960 --> 00:11:32,800
Speaker 1: with this woman kind of being attached to them because

163
00:11:33,080 --> 00:11:37,160
Speaker 1: her job and her employer were out there in the

164
00:11:37,280 --> 00:11:41,439
Speaker 1: in the media. So I just wanted to sum this up. So, basically,

165
00:11:41,920 --> 00:11:45,000
Speaker 1: workers who don't have contracts can be fired at will.

166
00:11:45,920 --> 00:11:50,040
Speaker 1: So if an employer sees that you're involved in protest,

167
00:11:50,120 --> 00:11:55,440
Speaker 1: let's say, an employer can basically fire that worker. That

168
00:11:55,600 --> 00:11:58,840
Speaker 1: is correct except in those, um, you know, few states

169
00:11:58,840 --> 00:12:02,880
Speaker 1: where there are states attutes. However, I would think that

170
00:12:02,960 --> 00:12:07,840
Speaker 1: it would behoove employers at this moment a profound change

171
00:12:07,840 --> 00:12:13,600
Speaker 1: in American history to look at that very carefully and say, well,

172
00:12:13,960 --> 00:12:18,000
Speaker 1: maybe I actually will support the peaceful protests. The number

173
00:12:18,040 --> 00:12:21,800
Speaker 1: of companies have actually indicated that they're going to make

174
00:12:21,960 --> 00:12:25,520
Speaker 1: be making contributions to such organizations at the as the

175
00:12:25,679 --> 00:12:29,160
Speaker 1: n a c T Legal Defense Funds, who are providing

176
00:12:29,320 --> 00:12:34,120
Speaker 1: legal assistance to the protests and also providing assistance to

177
00:12:34,720 --> 00:12:38,000
Speaker 1: to Congress and state legislatures, and in terms of trying

178
00:12:38,040 --> 00:12:43,120
Speaker 1: to reform various laws, particularly around law enforcement issues. I

179
00:12:43,120 --> 00:12:46,400
Speaker 1: think it might be curious to some workers that what

180
00:12:46,480 --> 00:12:49,280
Speaker 1: they do in their private time, that an employer has

181
00:12:49,320 --> 00:12:52,040
Speaker 1: anything to say about what they do in their private time.

182
00:12:53,200 --> 00:12:57,320
Speaker 1: Absolutely you know, most employees believe that they have certain

183
00:12:57,360 --> 00:13:00,319
Speaker 1: First Amendment rights and that what they do out side

184
00:13:00,320 --> 00:13:04,200
Speaker 1: of work, they can do along as it's lawful. However,

185
00:13:04,480 --> 00:13:09,640
Speaker 1: the Constitution does not apply to private sector employees and

186
00:13:10,000 --> 00:13:15,240
Speaker 1: the employer. As you mentioned earlier, most employees of our

187
00:13:15,280 --> 00:13:20,480
Speaker 1: employees will present. Unionized employees have certain protection, and some

188
00:13:20,920 --> 00:13:24,520
Speaker 1: public employees have certain protections. But for the private sector

189
00:13:24,559 --> 00:13:27,760
Speaker 1: employees who do not have contracts, and the only people

190
00:13:27,760 --> 00:13:31,679
Speaker 1: who really have contracts of employment are high level management

191
00:13:31,679 --> 00:13:36,240
Speaker 1: and executives. So all employees are employees at will, which

192
00:13:36,280 --> 00:13:41,040
Speaker 1: means that employer can squire that employee for any reason whatsoever,

193
00:13:41,240 --> 00:13:45,199
Speaker 1: accept an unlawful reason. It could be a bad reason,

194
00:13:45,240 --> 00:13:49,400
Speaker 1: is stupid reason and irrational reason, but unless it's unlawful

195
00:13:49,480 --> 00:13:52,920
Speaker 1: by a law, there is no protection for that employee.

196
00:13:53,200 --> 00:13:56,319
Speaker 1: Thanks Rick. That's Merrick Ross saying of the City University

197
00:13:56,440 --> 00:14:02,640
Speaker 1: of New York School of Law. It turned some legal

198
00:14:02,679 --> 00:14:06,960
Speaker 1: heads when two lawyers known for policing workplace discrimination during

199
00:14:07,000 --> 00:14:11,360
Speaker 1: the Obama administration joined Morgan Lewis, a huge law firm

200
00:14:11,440 --> 00:14:15,920
Speaker 1: that often defends companies accused of violating workers rights. Bloomberg

201
00:14:15,960 --> 00:14:19,720
Speaker 1: Law reporter Chris Offer talked to former Equal Employment Opportunity

202
00:14:19,760 --> 00:14:22,920
Speaker 1: Commission member high Fell Bloom and her chief of staff,

203
00:14:22,960 --> 00:14:26,600
Speaker 1: Sharon Massling, about leaving the plaintiff side of the labor

204
00:14:26,600 --> 00:14:30,480
Speaker 1: and employment bar for their new roles as management side lawyers,

205
00:14:30,680 --> 00:14:33,360
Speaker 1: and he joins me. Now, so Chris start by telling

206
00:14:33,440 --> 00:14:37,360
Speaker 1: us about their careers up to this point. So these

207
00:14:37,400 --> 00:14:40,280
Speaker 1: are a pair of civil rights attorneys who have dedicated

208
00:14:40,600 --> 00:14:45,560
Speaker 1: UH the last several decades of their career to workplace advocacy,

209
00:14:45,760 --> 00:14:50,320
Speaker 1: largely on the workers side UM, focusing in particular on

210
00:14:50,400 --> 00:14:55,920
Speaker 1: issues like disability rights UH, sex discrimination, and harassment in

211
00:14:55,960 --> 00:14:59,880
Speaker 1: the workplace. UM. The pair of folks who are se

212
00:15:00,320 --> 00:15:03,400
Speaker 1: in the democratic side of the aisle when it comes

213
00:15:03,440 --> 00:15:07,840
Speaker 1: to Capitol Hill. UH. Fell Bloom had started UM at

214
00:15:07,880 --> 00:15:09,960
Speaker 1: the a c. L U as a lawyer working on

215
00:15:10,400 --> 00:15:15,360
Speaker 1: legislative issues for their HIV AIDS project, went into academia

216
00:15:15,560 --> 00:15:20,240
Speaker 1: and started a disability rights clinic, was heavily involved in

217
00:15:20,360 --> 00:15:24,680
Speaker 1: efforts on Capitol Hill to pass legislation UH enacting gay

218
00:15:24,800 --> 00:15:28,640
Speaker 1: rights UM, and then was tapped by former President Obama

219
00:15:28,840 --> 00:15:33,840
Speaker 1: for a seat on the Equal Employment Opportunity Commission, where

220
00:15:33,880 --> 00:15:38,880
Speaker 1: she served for two terms UH and was actually appointed

221
00:15:38,920 --> 00:15:42,320
Speaker 1: for a third term by President Trump because the e

222
00:15:42,320 --> 00:15:45,200
Speaker 1: E s C has designated Democrat seats, so she was

223
00:15:45,680 --> 00:15:48,520
Speaker 1: appointed by Trump to fill Um one of the Democrats

224
00:15:48,520 --> 00:15:53,880
Speaker 1: teats there. Uh that appointment. That nomination was scuttled as

225
00:15:53,920 --> 00:15:57,520
Speaker 1: a result of some misgivings by a small group of

226
00:15:57,560 --> 00:16:02,360
Speaker 1: Republicans led by Senators Um, Mike Lee and Marco Rubio. Uh.

227
00:16:02,480 --> 00:16:05,280
Speaker 1: Fell Bloom, of course, was the E s c s

228
00:16:05,320 --> 00:16:10,360
Speaker 1: first openly gay member, UM and again was a champion

229
00:16:10,520 --> 00:16:15,320
Speaker 1: for some of the LGBT rights issues. UM and in

230
00:16:15,360 --> 00:16:19,280
Speaker 1: a small group of Republicans UM were concerned, they said,

231
00:16:19,320 --> 00:16:23,520
Speaker 1: about whether or not she could balance that advocacy with

232
00:16:23,600 --> 00:16:29,320
Speaker 1: respect for employers religious rights. Um masling Um, who often

233
00:16:29,440 --> 00:16:33,520
Speaker 1: is considered a sort of a sidekick for fell Bloom,

234
00:16:34,080 --> 00:16:37,080
Speaker 1: Uh is no slaps in her own rights. These are

235
00:16:37,480 --> 00:16:42,200
Speaker 1: you know, Harvard and one trained lawyer, Um who worked

236
00:16:42,240 --> 00:16:45,840
Speaker 1: on Capitol Hill on the Democratic side of the aisles

237
00:16:45,880 --> 00:16:49,440
Speaker 1: and worked in the Justice Department Civil Rights Division working

238
00:16:49,440 --> 00:16:53,480
Speaker 1: on disability rights issues before joining the E s C

239
00:16:53,640 --> 00:16:57,360
Speaker 1: and serving as Fell Blooms chief of staff. UM and

240
00:16:57,440 --> 00:17:02,160
Speaker 1: so once Um Sell blooms nomination with scuttle last year,

241
00:17:02,800 --> 00:17:06,119
Speaker 1: UH had to go looking for work and UM. What

242
00:17:06,280 --> 00:17:09,359
Speaker 1: was surprising to some folks UM that has worked with

243
00:17:09,400 --> 00:17:12,479
Speaker 1: them or know them was where they wound up going.

244
00:17:12,960 --> 00:17:16,040
Speaker 1: UM gets It was late last year they announced that

245
00:17:16,080 --> 00:17:19,639
Speaker 1: they were jumping ship and joining Morgan Lewis, which is

246
00:17:19,680 --> 00:17:24,960
Speaker 1: one of these ships huge mega law firms. Morgan Lewis

247
00:17:25,240 --> 00:17:29,280
Speaker 1: is known more as a defense firm. It's defended companies

248
00:17:29,320 --> 00:17:32,760
Speaker 1: and even President Trump and his companies. So tell us

249
00:17:32,800 --> 00:17:36,200
Speaker 1: a little bit about Morgan Lewis and what it stands for.

250
00:17:36,800 --> 00:17:40,639
Speaker 1: So this is a huge global law firm UM that

251
00:17:40,840 --> 00:17:45,000
Speaker 1: gets a large share of this income from UM advising

252
00:17:45,440 --> 00:17:48,480
Speaker 1: a wide range of companies and employment matters and also

253
00:17:48,560 --> 00:17:51,680
Speaker 1: defending them in court when they're accused of all all

254
00:17:51,720 --> 00:17:55,800
Speaker 1: sorts of things from labor violations and union busting to

255
00:17:56,160 --> 00:18:02,000
Speaker 1: employment discrimination and harassment. UM. Recently they've been UM defending

256
00:18:02,040 --> 00:18:04,720
Speaker 1: Amazon and some of the notable litigation going on over

257
00:18:04,760 --> 00:18:08,680
Speaker 1: there with respect to the company's treatment of workers and

258
00:18:08,840 --> 00:18:14,520
Speaker 1: safety issues at Amazon facility. UM and so the firm

259
00:18:14,800 --> 00:18:17,639
Speaker 1: also has been in the news recently because on the

260
00:18:17,680 --> 00:18:21,919
Speaker 1: tax side that their tax practice represents President Trump and

261
00:18:22,000 --> 00:18:25,240
Speaker 1: also the Trump organization in the wide range of the

262
00:18:25,400 --> 00:18:30,800
Speaker 1: tax related issues UH stemming from uh, not only President

263
00:18:30,880 --> 00:18:36,240
Speaker 1: Trump's UM refusal to release his tax his his personal

264
00:18:36,520 --> 00:18:40,800
Speaker 1: UH income tax returns, but also some tax issues related

265
00:18:40,840 --> 00:18:43,560
Speaker 1: to the Trump organization at large. You spoke to a

266
00:18:43,720 --> 00:18:48,520
Speaker 1: Chicago lawyer who was surprised by Felblum's career move, as

267
00:18:48,560 --> 00:18:52,040
Speaker 1: I expect many other lawyers are as well. What did

268
00:18:52,080 --> 00:18:56,640
Speaker 1: she say? Yeah, Brenda Faith actually had had done the

269
00:18:56,800 --> 00:19:00,720
Speaker 1: opposite which UM she had defended UM large law frooms

270
00:19:00,720 --> 00:19:05,119
Speaker 1: that I'm sorry large employers that take our shop before

271
00:19:05,160 --> 00:19:09,040
Speaker 1: flipping to the plainist side to represent workers and discrimination

272
00:19:09,080 --> 00:19:12,199
Speaker 1: and related cases. And she and other attorneys that I

273
00:19:12,240 --> 00:19:15,199
Speaker 1: spoke to on both sides of the political spectrum and

274
00:19:15,280 --> 00:19:19,320
Speaker 1: on both sides of the UH labor management bar express

275
00:19:19,400 --> 00:19:22,879
Speaker 1: some surprise, UM, just based on their experience having worked

276
00:19:22,880 --> 00:19:26,000
Speaker 1: with Heelb women Massling and also being familiar with the

277
00:19:26,040 --> 00:19:28,840
Speaker 1: body of work in their backgrounds in the issues they

278
00:19:28,840 --> 00:19:32,199
Speaker 1: had focused on, that these two lawyers would jump ships

279
00:19:32,240 --> 00:19:36,600
Speaker 1: and quote switch sides UM to a management firm known

280
00:19:36,680 --> 00:19:40,359
Speaker 1: for defending companies accused the violation. Stay right there, Chris,

281
00:19:40,359 --> 00:19:43,520
Speaker 1: We're going to continue this conversation and coming up next

282
00:19:43,520 --> 00:19:48,400
Speaker 1: on Bloomberg Law, how the coronavirus pandemic disrupted the plans

283
00:19:48,480 --> 00:19:51,760
Speaker 1: of Fell Bloom and mass Ling at their new firm,

284
00:19:51,800 --> 00:19:55,639
Speaker 1: and later why the Trump administration keeps losing in court

285
00:19:55,760 --> 00:19:59,240
Speaker 1: by ignoring climate change. And remember you can get the

286
00:19:59,320 --> 00:20:02,480
Speaker 1: latest legal news on our Bloomberg Law podcast. You can

287
00:20:02,520 --> 00:20:06,399
Speaker 1: find them on iTunes, SoundCloud or at Bloomberg dot com,

288
00:20:06,480 --> 00:20:11,000
Speaker 1: slash podcast Slash Law. I'm June Grosso and this is Bloomberg.

289
00:20:13,640 --> 00:20:18,840
Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.

290
00:20:19,359 --> 00:20:22,800
Speaker 1: I've been talking to Bloomberg Law reporter Chris Offer about

291
00:20:22,800 --> 00:20:27,480
Speaker 1: two Obama civil rights lawyers switching signs. Chris, often we

292
00:20:27,680 --> 00:20:33,119
Speaker 1: hear about lawyers who work their entire careers in government

293
00:20:33,440 --> 00:20:38,080
Speaker 1: and at regulatory agencies, and then they make the switch

294
00:20:38,320 --> 00:20:42,240
Speaker 1: to big law firms where they can command a lot

295
00:20:42,320 --> 00:20:47,159
Speaker 1: of money because of their prior connections and prior experience.

296
00:20:47,200 --> 00:20:51,160
Speaker 1: So is this really that surprising? So when I closed

297
00:20:51,200 --> 00:20:54,000
Speaker 1: to all Bloom and Masking, they certainly recognize that this

298
00:20:54,040 --> 00:20:56,080
Speaker 1: would be a pay bump for them, and it is

299
00:20:56,119 --> 00:20:59,680
Speaker 1: not out of the ordinary, generally speaking for official belief

300
00:20:59,800 --> 00:21:03,040
Speaker 1: of them in service and to command um a high

301
00:21:03,040 --> 00:21:06,920
Speaker 1: price tag. Often in these large corporate law firms. We've

302
00:21:06,960 --> 00:21:09,680
Speaker 1: seen a lot of that out of the Obama administration

303
00:21:09,760 --> 00:21:13,080
Speaker 1: since President Obama left office, but there is a in

304
00:21:13,119 --> 00:21:16,400
Speaker 1: the labor unemployment space that it is uh an oddity.

305
00:21:16,760 --> 00:21:19,840
Speaker 1: UM are analysis show that she's sells Bloom, that is,

306
00:21:19,960 --> 00:21:23,679
Speaker 1: is the first Democratic Commissioner to jump side after leaving

307
00:21:23,680 --> 00:21:27,879
Speaker 1: the E s C in two decades UM. And what

308
00:21:28,000 --> 00:21:31,480
Speaker 1: Publom and Measling said is that UM, in addition to

309
00:21:31,680 --> 00:21:34,800
Speaker 1: the pay bump, UH, this is a situation that allows

310
00:21:34,840 --> 00:21:38,120
Speaker 1: them to help companies do the right thing, to get

311
00:21:38,119 --> 00:21:41,399
Speaker 1: in on the ground floor, to advise them on the

312
00:21:41,440 --> 00:21:44,800
Speaker 1: front end, rather than defending them in court when they're

313
00:21:44,800 --> 00:21:48,159
Speaker 1: facing a lawsuit. And they're focusing in particular on what

314
00:21:48,200 --> 00:21:52,199
Speaker 1: they call workplace culture UM, which is an issue that

315
00:21:52,280 --> 00:21:53,879
Speaker 1: they spent a lot of time on that the E

316
00:21:53,880 --> 00:21:58,160
Speaker 1: E s C, particularly in the harassment realm UH following

317
00:21:58,200 --> 00:22:02,000
Speaker 1: the Harvey line seen uh a UM both of them

318
00:22:02,040 --> 00:22:06,160
Speaker 1: looking at this idea that workplaces can enhance their culture

319
00:22:06,640 --> 00:22:10,040
Speaker 1: and sort of combat some of the latent harassment discrimination

320
00:22:10,119 --> 00:22:13,920
Speaker 1: that may go on. UM. By actively managing that culture,

321
00:22:14,600 --> 00:22:18,200
Speaker 1: I imagine they'll get a lot of clients who see

322
00:22:18,240 --> 00:22:22,920
Speaker 1: them as sources of information about how the other side works.

323
00:22:23,680 --> 00:22:27,480
Speaker 1: Absolutely if nothing else, you could see a client a

324
00:22:27,560 --> 00:22:30,159
Speaker 1: company getting a letter from the e s C starting

325
00:22:30,200 --> 00:22:34,160
Speaker 1: to ask questions about a particular case or allegation, UM,

326
00:22:34,200 --> 00:22:36,600
Speaker 1: wanting to speak to people who are fresh off of

327
00:22:37,240 --> 00:22:40,439
Speaker 1: working over there and have a really uh sort of

328
00:22:40,480 --> 00:22:43,400
Speaker 1: insiders view as to how the agency works, how they

329
00:22:43,480 --> 00:22:47,159
Speaker 1: handle these cases, UM, and how they prosecute them. In

330
00:22:47,200 --> 00:22:51,119
Speaker 1: addition to that, UM, again it's it's sort of this

331
00:22:51,280 --> 00:22:54,760
Speaker 1: idea that UM, if you put in the time and

332
00:22:54,880 --> 00:22:58,600
Speaker 1: effort and make the commitment to work with some of

333
00:22:58,640 --> 00:23:01,680
Speaker 1: these attorneys to address some of these issues and nipped

334
00:23:01,680 --> 00:23:04,119
Speaker 1: them in the bud, it may very well save you

335
00:23:04,200 --> 00:23:06,240
Speaker 1: on the back end by keeping you out of court

336
00:23:06,400 --> 00:23:09,800
Speaker 1: or at least limiting your liability on the back end.

337
00:23:10,400 --> 00:23:14,480
Speaker 1: So when did they join Morgan Lewis? Uh? It was

338
00:23:14,600 --> 00:23:16,919
Speaker 1: right at the tail end of last year. So I

339
00:23:16,960 --> 00:23:19,600
Speaker 1: want to say the announcement came out in this or

340
00:23:19,760 --> 00:23:27,960
Speaker 1: of So then how has the pandemic affected their work? Right? So? UM,

341
00:23:28,000 --> 00:23:31,080
Speaker 1: you know the Massing and Pelblem had planned to really

342
00:23:31,119 --> 00:23:36,040
Speaker 1: focus on this advisory role, uh, particularly with respect to

343
00:23:36,720 --> 00:23:41,439
Speaker 1: discrimination and harassment and addressing workplace culture in that space. UM.

344
00:23:41,520 --> 00:23:44,840
Speaker 1: But they told me they found themselves shifting like pretty

345
00:23:44,920 --> 00:23:49,040
Speaker 1: much everyone else who practices labor and employment law UM

346
00:23:49,280 --> 00:23:53,880
Speaker 1: to tackling a wide range of questions posed by the coronavirus.

347
00:23:54,160 --> 00:23:57,560
Speaker 1: Because both of them have a background and expertise and

348
00:23:57,680 --> 00:24:01,919
Speaker 1: disability discrimination in particular, there UH they've been called on

349
00:24:02,080 --> 00:24:05,879
Speaker 1: to UM taxle a wide range of questions related to

350
00:24:06,760 --> 00:24:13,280
Speaker 1: UM testing employees for coronavirus, potentially testing employees for antibodies

351
00:24:13,840 --> 00:24:17,600
Speaker 1: for the coronavirus, and a wide range of other issues

352
00:24:17,640 --> 00:24:21,080
Speaker 1: related to the virus as companies start to think about

353
00:24:21,080 --> 00:24:24,760
Speaker 1: opening their doors and potentially bringing workers back to the

354
00:24:24,840 --> 00:24:28,280
Speaker 1: job and sell Bloom had a lot to do with

355
00:24:28,359 --> 00:24:32,760
Speaker 1: the Americans with Disabilities Act. She did, yes, And I

356
00:24:32,920 --> 00:24:37,479
Speaker 1: for one, UM would have guests that Congress UH thirty

357
00:24:37,560 --> 00:24:40,840
Speaker 1: years ago when they passed the Americans with Disabilities Act,

358
00:24:41,240 --> 00:24:44,359
Speaker 1: had no idea that any sort of pandemic the likes

359
00:24:44,440 --> 00:24:49,000
Speaker 1: of coronavirus would be striking us now here three decades later.

360
00:24:49,040 --> 00:24:52,639
Speaker 1: But what fell Bloom and Maslin said UM was that

361
00:24:52,760 --> 00:24:55,840
Speaker 1: actually it strikes a very similar chord to a lot

362
00:24:55,880 --> 00:24:59,240
Speaker 1: of the discussions that they had had regarding the HIV

363
00:24:59,440 --> 00:25:03,720
Speaker 1: aid UM pandemic at the time the epidemics UM which

364
00:25:03,800 --> 00:25:06,920
Speaker 1: was really piking. We're talking about the late eighties, early

365
00:25:07,000 --> 00:25:11,160
Speaker 1: nineties UM. And and it was interesting what Felblum, who

366
00:25:11,240 --> 00:25:13,199
Speaker 1: was working as an A C. L U lawyer at

367
00:25:13,200 --> 00:25:16,440
Speaker 1: the time and was up on Capitol Hill advising them,

368
00:25:16,480 --> 00:25:20,760
Speaker 1: particularly about HIV eight issues, said, UM, is that some

369
00:25:20,840 --> 00:25:23,080
Speaker 1: of the language that's being used now to address the

370
00:25:23,119 --> 00:25:26,760
Speaker 1: coronavirus UH is language that was written into the Act

371
00:25:27,280 --> 00:25:31,879
Speaker 1: to address concerns from lawmakers regarding HIV eight. In your story,

372
00:25:31,920 --> 00:25:35,440
Speaker 1: you discuss the question that employers are facing about whether

373
00:25:35,480 --> 00:25:39,240
Speaker 1: an employee poses a direct threat tell us about that.

374
00:25:39,240 --> 00:25:42,680
Speaker 1: That's right, it's a complicated analysis. The direct threat UM

375
00:25:42,720 --> 00:25:47,000
Speaker 1: analysis comes into play with employees who do not have

376
00:25:47,160 --> 00:25:51,080
Speaker 1: the virus but may have some underlying medical condition that

377
00:25:51,160 --> 00:25:56,879
Speaker 1: makes them particularly susceptible UM to you know, a really

378
00:25:56,880 --> 00:25:59,639
Speaker 1: bad bout of the virus or or maybe even death

379
00:26:00,040 --> 00:26:02,919
Speaker 1: if they contract the viry. And the question is what

380
00:26:02,960 --> 00:26:06,159
Speaker 1: can employees do and I'm sorry, what can employers do

381
00:26:06,720 --> 00:26:12,000
Speaker 1: in those situations in regards to bringing those employees back

382
00:26:12,040 --> 00:26:16,280
Speaker 1: into the workplace knowing that they may be particularly susceptible.

383
00:26:16,600 --> 00:26:18,639
Speaker 1: And so what was written into the A. D. A

384
00:26:19,400 --> 00:26:22,560
Speaker 1: UH to deal with the hiv A virus was this

385
00:26:22,680 --> 00:26:26,120
Speaker 1: direct threat language. And what it says is that UH

386
00:26:26,119 --> 00:26:28,920
Speaker 1: an employer making those kinds of decisions has to look

387
00:26:28,960 --> 00:26:32,240
Speaker 1: at every employee individually, has to look at what sort

388
00:26:32,240 --> 00:26:36,879
Speaker 1: of reasonable accommodations can be made um to protect that

389
00:26:37,040 --> 00:26:40,520
Speaker 1: employee on the job UM, and then based on those

390
00:26:40,520 --> 00:26:44,520
Speaker 1: reasonable accommodations, whether or not the employee would still constitute

391
00:26:44,600 --> 00:26:47,960
Speaker 1: quote a direct threat either to the employee themselves or

392
00:26:48,040 --> 00:26:50,560
Speaker 1: to their co workers. And if the answer is yes,

393
00:26:50,640 --> 00:26:53,520
Speaker 1: there is a direct threat there, then the company can

394
00:26:53,560 --> 00:26:55,560
Speaker 1: say we're not going to bring you back to the

395
00:26:55,640 --> 00:26:57,720
Speaker 1: job right now. But they have to go through that

396
00:26:57,760 --> 00:27:01,280
Speaker 1: whole uh you know, sort of comp like legal analysis

397
00:27:01,359 --> 00:27:05,960
Speaker 1: before making that decision. So finally, Chris, did either of

398
00:27:06,000 --> 00:27:09,440
Speaker 1: them tell you about any backlash they may have gotten

399
00:27:09,520 --> 00:27:13,760
Speaker 1: from fellow lawyers about going to the other side. Not

400
00:27:13,960 --> 00:27:17,399
Speaker 1: a lot, they acknowledged, maybe a couple of eyebrows rates

401
00:27:17,520 --> 00:27:19,960
Speaker 1: here and there at toptail parties and that kind of thing.

402
00:27:20,080 --> 00:27:23,520
Speaker 1: But um, you know, the labor and employment bar is

403
00:27:23,600 --> 00:27:28,600
Speaker 1: a fairly narrow universe, and uh, you know, these people

404
00:27:28,680 --> 00:27:31,280
Speaker 1: like to or try their best to play well together

405
00:27:31,359 --> 00:27:34,440
Speaker 1: even when they're on opposing sides in the courtroom um

406
00:27:34,560 --> 00:27:37,120
Speaker 1: or at the negotiating tables. So not a ton of that,

407
00:27:37,280 --> 00:27:40,440
Speaker 1: particularly knowing you know who knows down the road. In

408
00:27:40,600 --> 00:27:44,480
Speaker 1: a future democratic administration, you could see both fell bloom

409
00:27:44,520 --> 00:27:47,600
Speaker 1: and Massling back in some sort of leadership role, whether

410
00:27:47,640 --> 00:27:51,800
Speaker 1: that's at the sc or elsewhere. Thanks Chris. That's Chris Offer.

411
00:27:52,040 --> 00:27:54,920
Speaker 1: He's the Bloomberg Law team leader for the business of law.

412
00:27:55,359 --> 00:27:59,080
Speaker 1: Coming up next to Bloomberg Law. Why the Trump administration

413
00:27:59,200 --> 00:28:03,080
Speaker 1: keeps losing in court by ignoring climate change. I'm June

414
00:28:03,119 --> 00:28:04,720
Speaker 1: Brasso and this is Luberg