Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: Many businesses are taking steps to support their workers during
Speaker 1: protests against police brutality after the death of George Floyd.
Speaker 1: But on the flip side, workers have few legal protections
Speaker 1: if an employer decides to fire them for protesting outside
Speaker 1: of work. Joining me is Mark ros Saying, a professor
Speaker 1: at the City University of New York School of Law.
Speaker 1: In general, what should employers be doing for workers at
Speaker 1: these times of social unrest, even if the workers are
Speaker 1: at home. Well, First of all, well, employers must recognize
Speaker 1: the tremendous trauma with the convergence of the COVID crisis,
Speaker 1: and I would say the structural racism crisis, said white
Speaker 1: America has finally learned and woken up to. I'm a
Speaker 1: white person, so I'm saying that from my own perspective. Also,
Speaker 1: although I have been studying this field for many decades,
Speaker 1: but I think it's really important that employers, as corporate citizens,
Speaker 1: have to recognize what is going on in this tremendous
Speaker 1: inflection point in history and recognize that their own employees
Speaker 1: are being impacted by this trauma, particularly their employees of color,
Speaker 1: and so should they be reaching out to them? Should
Speaker 1: they be offering programs? You know, what should they do
Speaker 1: to send a signal or to help? Yes, first of all,
Speaker 1: they should be reaching out um and uh. The employers
Speaker 1: and companies should be training their managers who are interacting
Speaker 1: with their line employees and say you must really reach
Speaker 1: out to them and don't just say how are you doing,
Speaker 1: but specifically ask how are you feeling? Is the COVID
Speaker 1: crisis impacting you right now? Is all the demonstrations in
Speaker 1: the streets and all the news impacting you right now?
Speaker 1: How can I help you? Do you need some type
Speaker 1: of accommodation? That's one thing. Number two. I think that companies,
Speaker 1: many companies have employee system plans that allow for employee
Speaker 1: to reach out to a counselor to get counseling. But
Speaker 1: I think all companies really have to look at that
Speaker 1: programs are are they sufficient? Are they really addressing the
Speaker 1: huge trauma, the psychological trauma that people are feeling. And
Speaker 1: we now know that the trauma is not just current,
Speaker 1: but it is intergenerational, particularly for communities of color and
Speaker 1: more specifically for the African American community because we're now
Speaker 1: beginning to understand that go back four hundred years from
Speaker 1: the Middle Passage of bringing enslaved people to this country,
Speaker 1: to the slavery period, to the Jim Crow period, to
Speaker 1: the period where the United States government and state governments
Speaker 1: were providing benefits primarily to the white communities and discriminating
Speaker 1: against communities of color. So today we recognize that there
Speaker 1: is a tremendous disparity in wealth and an ownership, and
Speaker 1: it has created a tremendous amount of trauma in people
Speaker 1: of color. So now suppose someone says, you know, it's
Speaker 1: too much for me or I have to take care
Speaker 1: of my family. Can they get paid leave, paid medical leave,
Speaker 1: or paid leave of any kind. Well, of course, you know,
Speaker 1: in terms of what statutory and legal programs are set up.
Speaker 1: There are some states where there is paid leaves. But
Speaker 1: to pay leaves is generally to take care of a
Speaker 1: family member or to take care of yourself. But but
Speaker 1: that's limited to a number, just a handful of states.
Speaker 1: There is no national program. But what I'm advising employers
Speaker 1: now is to say, as a corporate citizen, this is
Speaker 1: a point in history where you have to really say, Okay,
Speaker 1: does this very important employee need some additional help, and
Speaker 1: can we provide paid leaves? And so I think companies
Speaker 1: really should look inward and say, yes, this is very
Speaker 1: important to do at this point and develop these programs.
Speaker 1: Companies won't be getting any assistance from this the states
Speaker 1: or is it just dependent on your own insurance program? Well,
Speaker 1: a number of states and you're probably familiar with it
Speaker 1: during the COVID period now have said, okay, if you
Speaker 1: have a paid leave program for some employees but not
Speaker 1: other employees, you must give it to a everybody. But generally,
Speaker 1: what this has really shown is that we really do
Speaker 1: need a paid leave program for all groups of workers,
Speaker 1: similar to what most other industrialized countries, certainly the European
Speaker 1: nations but also a number of Asian countries also have
Speaker 1: been providing to their employees and to their citizens. And
Speaker 1: so the COVID crisis has really put forward in front
Speaker 1: of our eyes all the inequities where the so called
Speaker 1: essential workers that were we are now celebrating that they're
Speaker 1: helping those of us who have the privilege like myself
Speaker 1: to be able to work at home on computers and
Speaker 1: to continue getting my pay. And I have paid sickly
Speaker 1: through through by employer. We are recognizing that many of
Speaker 1: these center workers, the lower wage workers, and mostly people
Speaker 1: of color, many immigrants, do not have these benfits, and
Speaker 1: so it's the time for us to re examine moving
Speaker 1: forward whether we want a society that is really living
Speaker 1: up to what the Constitution put forward in equality. Fool
Speaker 1: Coming up next? Can an employer fire you for engaging
Speaker 1: in protests? I'm jun Brasso and this is the bird
Speaker 1: I've been talking to Professor marrickros Saying of the City
Speaker 1: University of New York School of Law about steps businesses
Speaker 1: are taking to support their workers during this time. How
Speaker 1: far behind other countries as far as workers rights in
Speaker 1: this area is the US? We are way behind other countries.
Speaker 1: And if we just examine, you know, the countries that
Speaker 1: we have interacted with, that we trade with more the
Speaker 1: European Union countries that I'm not just talking about the
Speaker 1: Scandinavian countries. Many people will say, well, of course, Denmark, Sweden, Finland, Norway,
Speaker 1: they're different. They they've had a kind of social democracy. Um.
Speaker 1: But if we look at Germany, if we look at Spain,
Speaker 1: if we look at Italy, um, all these countries have
Speaker 1: paid leaf programs. They differ somewhere, UM, but they they
Speaker 1: have many programs that benefit all of their employees much
Speaker 1: more than we do. And of course, if you look
Speaker 1: at the health statistics we have been even before the
Speaker 1: COVID crisis, we have been way behind between in terms
Speaker 1: of instant mortality rates and maternal mortality rates during the
Speaker 1: pregnancy and childbirth, we are way behind. So now let's
Speaker 1: turn to another concern in this area, and that is
Speaker 1: so a lot of people are protesting. Can you be
Speaker 1: fired if your employer finds out you've been protesting peacefully
Speaker 1: and they don't like the look of it. There is
Speaker 1: no federal protection to people who are protesting legally, except
Speaker 1: if you are are a public employee because you have
Speaker 1: limited constitutional rights. But primarily the constitution does not apply
Speaker 1: to private sector employees. There are a few states that
Speaker 1: have statutes that prohibit employers from disciplining workers for outside
Speaker 1: activity lawful outside activity, um, California, New York, New Jersey,
Speaker 1: a few states, probably a few more. But this is
Speaker 1: something that I think that employers should look at very
Speaker 1: carefully and recognize that this is once again an inflection
Speaker 1: point in history where people are going out and demanding
Speaker 1: really structural changes not only at the workplace but throughout society.
Speaker 1: And I think that it would be beneficial to companies
Speaker 1: to recognize that they should participate in trying to make
Speaker 1: these structural reforms so that their employees can be fully
Speaker 1: contributing employees and that we could all be part of
Speaker 1: the society that is moving to heal as opposed to
Speaker 1: the tremendous divisions that we have. So is there a
Speaker 1: difference if an employee, let's say, is arrested during a protest.
Speaker 1: Does that make a difference even in those states that
Speaker 1: have laws about this, Well, you know generally those states
Speaker 1: would say we were talking about lawful activity. Um, But
Speaker 1: we have to be very careful about examining the arrest
Speaker 1: right now. First of all, there's a legal process that
Speaker 1: has to go through. And as we know that, there
Speaker 1: have been many instances of unlawful activity by the law
Speaker 1: enforcement agencies. For instance, in an example in New York
Speaker 1: City in the Bronx last week, there was a peaceful
Speaker 1: demonstration and there were legal observice, lawyers and law students
Speaker 1: who were clearly at identified and the mayor's order to
Speaker 1: the law enforcement agency, the NYPD was these legal observers
Speaker 1: have a right to be looking at what's going on.
Speaker 1: Ten of them were arrested. That's an unlawful arrest. But
Speaker 1: until the legal process goes on, and some of those
Speaker 1: lawyers might be working for different companies and they certainly
Speaker 1: should not be disciplined for that type of activity. There
Speaker 1: was an incident in Central Park that got a lot
Speaker 1: of publicity where a woman called police after an African
Speaker 1: American man asked her to put her dog on a leash,
Speaker 1: which is required in New York. She was fired. Is
Speaker 1: that kind of firing permissible? Can she appeal that? In
Speaker 1: any way? It is permissible? What what she actually did
Speaker 1: might not be unlawful, although I noticed that the state
Speaker 1: legislatures new state legislature yesterday pass some legislation which would
Speaker 1: cause that type of activity be the wilful in the future.
Speaker 1: If you call nine one one and reports something that
Speaker 1: is not true, that that would be a violation. That's
Speaker 1: criminal law. It's not so clear that that was a violation,
Speaker 1: but there might have been a violation. But yes, an
Speaker 1: employer could discipline and discharge that employee. That particular employer
Speaker 1: was concerned about their reputational harm with the publicity, uh,
Speaker 1: with this woman kind of being attached to them because
Speaker 1: her job and her employer were out there in the
Speaker 1: in the media. So I just wanted to sum this up. So, basically,
Speaker 1: workers who don't have contracts can be fired at will.
Speaker 1: So if an employer sees that you're involved in protest,
Speaker 1: let's say, an employer can basically fire that worker. That
Speaker 1: is correct except in those, um, you know, few states
Speaker 1: where there are states attutes. However, I would think that
Speaker 1: it would behoove employers at this moment a profound change
Speaker 1: in American history to look at that very carefully and say, well,
Speaker 1: maybe I actually will support the peaceful protests. The number
Speaker 1: of companies have actually indicated that they're going to make
Speaker 1: be making contributions to such organizations at the as the
Speaker 1: n a c T Legal Defense Funds, who are providing
Speaker 1: legal assistance to the protests and also providing assistance to
Speaker 1: to Congress and state legislatures, and in terms of trying
Speaker 1: to reform various laws, particularly around law enforcement issues. I
Speaker 1: think it might be curious to some workers that what
Speaker 1: they do in their private time, that an employer has
Speaker 1: anything to say about what they do in their private time.
Speaker 1: Absolutely you know, most employees believe that they have certain
Speaker 1: First Amendment rights and that what they do out side
Speaker 1: of work, they can do along as it's lawful. However,
Speaker 1: the Constitution does not apply to private sector employees and
Speaker 1: the employer. As you mentioned earlier, most employees of our
Speaker 1: employees will present. Unionized employees have certain protection, and some
Speaker 1: public employees have certain protections. But for the private sector
Speaker 1: employees who do not have contracts, and the only people
Speaker 1: who really have contracts of employment are high level management
Speaker 1: and executives. So all employees are employees at will, which
Speaker 1: means that employer can squire that employee for any reason whatsoever,
Speaker 1: accept an unlawful reason. It could be a bad reason,
Speaker 1: is stupid reason and irrational reason, but unless it's unlawful
Speaker 1: by a law, there is no protection for that employee.
Speaker 1: Thanks Rick. That's Merrick Ross saying of the City University
Speaker 1: of New York School of Law. It turned some legal
Speaker 1: heads when two lawyers known for policing workplace discrimination during
Speaker 1: the Obama administration joined Morgan Lewis, a huge law firm
Speaker 1: that often defends companies accused of violating workers rights. Bloomberg
Speaker 1: Law reporter Chris Offer talked to former Equal Employment Opportunity
Speaker 1: Commission member high Fell Bloom and her chief of staff,
Speaker 1: Sharon Massling, about leaving the plaintiff side of the labor
Speaker 1: and employment bar for their new roles as management side lawyers,
Speaker 1: and he joins me. Now, so Chris start by telling
Speaker 1: us about their careers up to this point. So these
Speaker 1: are a pair of civil rights attorneys who have dedicated
Speaker 1: UH the last several decades of their career to workplace advocacy,
Speaker 1: largely on the workers side UM, focusing in particular on
Speaker 1: issues like disability rights UH, sex discrimination, and harassment in
Speaker 1: the workplace. UM. The pair of folks who are se
Speaker 1: in the democratic side of the aisle when it comes
Speaker 1: to Capitol Hill. UH. Fell Bloom had started UM at
Speaker 1: the a c. L U as a lawyer working on
Speaker 1: legislative issues for their HIV AIDS project, went into academia
Speaker 1: and started a disability rights clinic, was heavily involved in
Speaker 1: efforts on Capitol Hill to pass legislation UH enacting gay
Speaker 1: rights UM, and then was tapped by former President Obama
Speaker 1: for a seat on the Equal Employment Opportunity Commission, where
Speaker 1: she served for two terms UH and was actually appointed
Speaker 1: for a third term by President Trump because the e
Speaker 1: E s C has designated Democrat seats, so she was
Speaker 1: appointed by Trump to fill Um one of the Democrats
Speaker 1: teats there. Uh that appointment. That nomination was scuttled as
Speaker 1: a result of some misgivings by a small group of
Speaker 1: Republicans led by Senators Um, Mike Lee and Marco Rubio. Uh.
Speaker 1: Fell Bloom, of course, was the E s c s
Speaker 1: first openly gay member, UM and again was a champion
Speaker 1: for some of the LGBT rights issues. UM and in
Speaker 1: a small group of Republicans UM were concerned, they said,
Speaker 1: about whether or not she could balance that advocacy with
Speaker 1: respect for employers religious rights. Um masling Um, who often
Speaker 1: is considered a sort of a sidekick for fell Bloom,
Speaker 1: Uh is no slaps in her own rights. These are
Speaker 1: you know, Harvard and one trained lawyer, Um who worked
Speaker 1: on Capitol Hill on the Democratic side of the aisles
Speaker 1: and worked in the Justice Department Civil Rights Division working
Speaker 1: on disability rights issues before joining the E s C
Speaker 1: and serving as Fell Blooms chief of staff. UM and
Speaker 1: so once Um Sell blooms nomination with scuttle last year,
Speaker 1: UH had to go looking for work and UM. What
Speaker 1: was surprising to some folks UM that has worked with
Speaker 1: them or know them was where they wound up going.
Speaker 1: UM gets It was late last year they announced that
Speaker 1: they were jumping ship and joining Morgan Lewis, which is
Speaker 1: one of these ships huge mega law firms. Morgan Lewis
Speaker 1: is known more as a defense firm. It's defended companies
Speaker 1: and even President Trump and his companies. So tell us
Speaker 1: a little bit about Morgan Lewis and what it stands for.
Speaker 1: So this is a huge global law firm UM that
Speaker 1: gets a large share of this income from UM advising
Speaker 1: a wide range of companies and employment matters and also
Speaker 1: defending them in court when they're accused of all all
Speaker 1: sorts of things from labor violations and union busting to
Speaker 1: employment discrimination and harassment. UM. Recently they've been UM defending
Speaker 1: Amazon and some of the notable litigation going on over
Speaker 1: there with respect to the company's treatment of workers and
Speaker 1: safety issues at Amazon facility. UM and so the firm
Speaker 1: also has been in the news recently because on the
Speaker 1: tax side that their tax practice represents President Trump and
Speaker 1: also the Trump organization in the wide range of the
Speaker 1: tax related issues UH stemming from uh, not only President
Speaker 1: Trump's UM refusal to release his tax his his personal
Speaker 1: UH income tax returns, but also some tax issues related
Speaker 1: to the Trump organization at large. You spoke to a
Speaker 1: Chicago lawyer who was surprised by Felblum's career move, as
Speaker 1: I expect many other lawyers are as well. What did
Speaker 1: she say? Yeah, Brenda Faith actually had had done the
Speaker 1: opposite which UM she had defended UM large law frooms
Speaker 1: that I'm sorry large employers that take our shop before
Speaker 1: flipping to the plainist side to represent workers and discrimination
Speaker 1: and related cases. And she and other attorneys that I
Speaker 1: spoke to on both sides of the political spectrum and
Speaker 1: on both sides of the UH labor management bar express
Speaker 1: some surprise, UM, just based on their experience having worked
Speaker 1: with Heelb women Massling and also being familiar with the
Speaker 1: body of work in their backgrounds in the issues they
Speaker 1: had focused on, that these two lawyers would jump ships
Speaker 1: and quote switch sides UM to a management firm known
Speaker 1: for defending companies accused the violation. Stay right there, Chris,
Speaker 1: We're going to continue this conversation and coming up next
Speaker 1: on Bloomberg Law, how the coronavirus pandemic disrupted the plans
Speaker 1: of Fell Bloom and mass Ling at their new firm,
Speaker 1: and later why the Trump administration keeps losing in court
Speaker 1: by ignoring climate change. And remember you can get the
Speaker 1: latest legal news on our Bloomberg Law podcast. You can
Speaker 1: find them on iTunes, SoundCloud or at Bloomberg dot com,
Speaker 1: slash podcast Slash Law. I'm June Grosso and this is Bloomberg.
Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: I've been talking to Bloomberg Law reporter Chris Offer about
Speaker 1: two Obama civil rights lawyers switching signs. Chris, often we
Speaker 1: hear about lawyers who work their entire careers in government
Speaker 1: and at regulatory agencies, and then they make the switch
Speaker 1: to big law firms where they can command a lot
Speaker 1: of money because of their prior connections and prior experience.
Speaker 1: So is this really that surprising? So when I closed
Speaker 1: to all Bloom and Masking, they certainly recognize that this
Speaker 1: would be a pay bump for them, and it is
Speaker 1: not out of the ordinary, generally speaking for official belief
Speaker 1: of them in service and to command um a high
Speaker 1: price tag. Often in these large corporate law firms. We've
Speaker 1: seen a lot of that out of the Obama administration
Speaker 1: since President Obama left office, but there is a in
Speaker 1: the labor unemployment space that it is uh an oddity.
Speaker 1: UM are analysis show that she's sells Bloom, that is,
Speaker 1: is the first Democratic Commissioner to jump side after leaving
Speaker 1: the E s C in two decades UM. And what
Speaker 1: Publom and Measling said is that UM, in addition to
Speaker 1: the pay bump, UH, this is a situation that allows
Speaker 1: them to help companies do the right thing, to get
Speaker 1: in on the ground floor, to advise them on the
Speaker 1: front end, rather than defending them in court when they're
Speaker 1: facing a lawsuit. And they're focusing in particular on what
Speaker 1: they call workplace culture UM, which is an issue that
Speaker 1: they spent a lot of time on that the E
Speaker 1: E s C, particularly in the harassment realm UH following
Speaker 1: the Harvey line seen uh a UM both of them
Speaker 1: looking at this idea that workplaces can enhance their culture
Speaker 1: and sort of combat some of the latent harassment discrimination
Speaker 1: that may go on. UM. By actively managing that culture,
Speaker 1: I imagine they'll get a lot of clients who see
Speaker 1: them as sources of information about how the other side works.
Speaker 1: Absolutely if nothing else, you could see a client a
Speaker 1: company getting a letter from the e s C starting
Speaker 1: to ask questions about a particular case or allegation, UM,
Speaker 1: wanting to speak to people who are fresh off of
Speaker 1: working over there and have a really uh sort of
Speaker 1: insiders view as to how the agency works, how they
Speaker 1: handle these cases, UM, and how they prosecute them. In
Speaker 1: addition to that, UM, again it's it's sort of this
Speaker 1: idea that UM, if you put in the time and
Speaker 1: effort and make the commitment to work with some of
Speaker 1: these attorneys to address some of these issues and nipped
Speaker 1: them in the bud, it may very well save you
Speaker 1: on the back end by keeping you out of court
Speaker 1: or at least limiting your liability on the back end.
Speaker 1: So when did they join Morgan Lewis? Uh? It was
Speaker 1: right at the tail end of last year. So I
Speaker 1: want to say the announcement came out in this or
Speaker 1: of So then how has the pandemic affected their work? Right? So? UM,
Speaker 1: you know the Massing and Pelblem had planned to really
Speaker 1: focus on this advisory role, uh, particularly with respect to
Speaker 1: discrimination and harassment and addressing workplace culture in that space. UM.
Speaker 1: But they told me they found themselves shifting like pretty
Speaker 1: much everyone else who practices labor and employment law UM
Speaker 1: to tackling a wide range of questions posed by the coronavirus.
Speaker 1: Because both of them have a background and expertise and
Speaker 1: disability discrimination in particular, there UH they've been called on
Speaker 1: to UM taxle a wide range of questions related to
Speaker 1: UM testing employees for coronavirus, potentially testing employees for antibodies
Speaker 1: for the coronavirus, and a wide range of other issues
Speaker 1: related to the virus as companies start to think about
Speaker 1: opening their doors and potentially bringing workers back to the
Speaker 1: job and sell Bloom had a lot to do with
Speaker 1: the Americans with Disabilities Act. She did, yes, And I
Speaker 1: for one, UM would have guests that Congress UH thirty
Speaker 1: years ago when they passed the Americans with Disabilities Act,
Speaker 1: had no idea that any sort of pandemic the likes
Speaker 1: of coronavirus would be striking us now here three decades later.
Speaker 1: But what fell Bloom and Maslin said UM was that
Speaker 1: actually it strikes a very similar chord to a lot
Speaker 1: of the discussions that they had had regarding the HIV
Speaker 1: aid UM pandemic at the time the epidemics UM which
Speaker 1: was really piking. We're talking about the late eighties, early
Speaker 1: nineties UM. And and it was interesting what Felblum, who
Speaker 1: was working as an A C. L U lawyer at
Speaker 1: the time and was up on Capitol Hill advising them,
Speaker 1: particularly about HIV eight issues, said, UM, is that some
Speaker 1: of the language that's being used now to address the
Speaker 1: coronavirus UH is language that was written into the Act
Speaker 1: to address concerns from lawmakers regarding HIV eight. In your story,
Speaker 1: you discuss the question that employers are facing about whether
Speaker 1: an employee poses a direct threat tell us about that.
Speaker 1: That's right, it's a complicated analysis. The direct threat UM
Speaker 1: analysis comes into play with employees who do not have
Speaker 1: the virus but may have some underlying medical condition that
Speaker 1: makes them particularly susceptible UM to you know, a really
Speaker 1: bad bout of the virus or or maybe even death
Speaker 1: if they contract the viry. And the question is what
Speaker 1: can employees do and I'm sorry, what can employers do
Speaker 1: in those situations in regards to bringing those employees back
Speaker 1: into the workplace knowing that they may be particularly susceptible.
Speaker 1: And so what was written into the A. D. A
Speaker 1: UH to deal with the hiv A virus was this
Speaker 1: direct threat language. And what it says is that UH
Speaker 1: an employer making those kinds of decisions has to look
Speaker 1: at every employee individually, has to look at what sort
Speaker 1: of reasonable accommodations can be made um to protect that
Speaker 1: employee on the job UM, and then based on those
Speaker 1: reasonable accommodations, whether or not the employee would still constitute
Speaker 1: quote a direct threat either to the employee themselves or
Speaker 1: to their co workers. And if the answer is yes,
Speaker 1: there is a direct threat there, then the company can
Speaker 1: say we're not going to bring you back to the
Speaker 1: job right now. But they have to go through that
Speaker 1: whole uh you know, sort of comp like legal analysis
Speaker 1: before making that decision. So finally, Chris, did either of
Speaker 1: them tell you about any backlash they may have gotten
Speaker 1: from fellow lawyers about going to the other side. Not
Speaker 1: a lot, they acknowledged, maybe a couple of eyebrows rates
Speaker 1: here and there at toptail parties and that kind of thing.
Speaker 1: But um, you know, the labor and employment bar is
Speaker 1: a fairly narrow universe, and uh, you know, these people
Speaker 1: like to or try their best to play well together
Speaker 1: even when they're on opposing sides in the courtroom um
Speaker 1: or at the negotiating tables. So not a ton of that,
Speaker 1: particularly knowing you know who knows down the road. In
Speaker 1: a future democratic administration, you could see both fell bloom
Speaker 1: and Massling back in some sort of leadership role, whether
Speaker 1: that's at the sc or elsewhere. Thanks Chris. That's Chris Offer.
Speaker 1: He's the Bloomberg Law team leader for the business of law.
Speaker 1: Coming up next to Bloomberg Law. Why the Trump administration
Speaker 1: keeps losing in court by ignoring climate change. I'm June
Speaker 1: Brasso and this is Luberg