WEBVTT - You Can be Fired for Protesting in Most States 0:00:00.480 --> 0:00:05.680 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:06.559 --> 0:00:09.920 Many businesses are taking steps to support their workers during 0:00:09.920 --> 0:00:13.680 protests against police brutality after the death of George Floyd. 0:00:14.120 --> 0:00:17.439 But on the flip side, workers have few legal protections 0:00:17.480 --> 0:00:21.040 if an employer decides to fire them for protesting outside 0:00:21.040 --> 0:00:23.960 of work. Joining me is Mark ros Saying, a professor 0:00:23.960 --> 0:00:26.440 at the City University of New York School of Law. 0:00:27.120 --> 0:00:32.919 In general, what should employers be doing for workers at 0:00:32.960 --> 0:00:36.879 these times of social unrest, even if the workers are 0:00:36.920 --> 0:00:43.320 at home. Well, First of all, well, employers must recognize 0:00:43.400 --> 0:00:49.040 the tremendous trauma with the convergence of the COVID crisis, 0:00:50.000 --> 0:00:56.040 and I would say the structural racism crisis, said white 0:00:56.040 --> 0:01:01.040 America has finally learned and woken up to. I'm a 0:01:01.080 --> 0:01:04.640 white person, so I'm saying that from my own perspective. Also, 0:01:05.040 --> 0:01:08.759 although I have been studying this field for many decades, 0:01:09.560 --> 0:01:14.080 but I think it's really important that employers, as corporate citizens, 0:01:14.160 --> 0:01:17.959 have to recognize what is going on in this tremendous 0:01:18.000 --> 0:01:23.480 inflection point in history and recognize that their own employees 0:01:23.520 --> 0:01:28.559 are being impacted by this trauma, particularly their employees of color, 0:01:29.280 --> 0:01:32.479 and so should they be reaching out to them? Should 0:01:32.520 --> 0:01:36.280 they be offering programs? You know, what should they do 0:01:36.520 --> 0:01:40.160 to send a signal or to help? Yes, first of all, 0:01:40.319 --> 0:01:44.720 they should be reaching out um and uh. The employers 0:01:44.760 --> 0:01:50.200 and companies should be training their managers who are interacting 0:01:50.320 --> 0:01:54.800 with their line employees and say you must really reach 0:01:54.840 --> 0:01:57.800 out to them and don't just say how are you doing, 0:01:57.920 --> 0:02:02.640 but specifically ask how are you feeling? Is the COVID 0:02:02.760 --> 0:02:08.240 crisis impacting you right now? Is all the demonstrations in 0:02:08.280 --> 0:02:11.359 the streets and all the news impacting you right now? 0:02:11.480 --> 0:02:14.400 How can I help you? Do you need some type 0:02:14.400 --> 0:02:19.200 of accommodation? That's one thing. Number two. I think that companies, 0:02:19.280 --> 0:02:25.279 many companies have employee system plans that allow for employee 0:02:25.320 --> 0:02:29.720 to reach out to a counselor to get counseling. But 0:02:29.919 --> 0:02:32.280 I think all companies really have to look at that 0:02:32.520 --> 0:02:37.280 programs are are they sufficient? Are they really addressing the 0:02:37.840 --> 0:02:42.440 huge trauma, the psychological trauma that people are feeling. And 0:02:42.480 --> 0:02:45.920 we now know that the trauma is not just current, 0:02:46.040 --> 0:02:51.120 but it is intergenerational, particularly for communities of color and 0:02:51.200 --> 0:02:55.600 more specifically for the African American community because we're now 0:02:55.720 --> 0:03:00.000 beginning to understand that go back four hundred years from 0:03:00.040 --> 0:03:03.560 the Middle Passage of bringing enslaved people to this country, 0:03:03.680 --> 0:03:08.640 to the slavery period, to the Jim Crow period, to 0:03:08.919 --> 0:03:13.120 the period where the United States government and state governments 0:03:13.120 --> 0:03:19.160 were providing benefits primarily to the white communities and discriminating 0:03:19.240 --> 0:03:23.200 against communities of color. So today we recognize that there 0:03:23.240 --> 0:03:28.160 is a tremendous disparity in wealth and an ownership, and 0:03:28.240 --> 0:03:33.040 it has created a tremendous amount of trauma in people 0:03:33.120 --> 0:03:38.119 of color. So now suppose someone says, you know, it's 0:03:38.120 --> 0:03:40.960 too much for me or I have to take care 0:03:40.960 --> 0:03:45.880 of my family. Can they get paid leave, paid medical leave, 0:03:46.040 --> 0:03:50.200 or paid leave of any kind. Well, of course, you know, 0:03:50.280 --> 0:03:55.600 in terms of what statutory and legal programs are set up. 0:03:55.960 --> 0:03:59.480 There are some states where there is paid leaves. But 0:03:59.640 --> 0:04:02.520 to pay leaves is generally to take care of a 0:04:02.640 --> 0:04:05.760 family member or to take care of yourself. But but 0:04:05.920 --> 0:04:09.120 that's limited to a number, just a handful of states. 0:04:09.600 --> 0:04:14.080 There is no national program. But what I'm advising employers 0:04:14.160 --> 0:04:17.440 now is to say, as a corporate citizen, this is 0:04:17.480 --> 0:04:21.200 a point in history where you have to really say, Okay, 0:04:21.279 --> 0:04:27.680 does this very important employee need some additional help, and 0:04:27.720 --> 0:04:31.240 can we provide paid leaves? And so I think companies 0:04:31.279 --> 0:04:34.839 really should look inward and say, yes, this is very 0:04:34.880 --> 0:04:38.680 important to do at this point and develop these programs. 0:04:39.240 --> 0:04:42.800 Companies won't be getting any assistance from this the states 0:04:43.200 --> 0:04:47.960 or is it just dependent on your own insurance program? Well, 0:04:48.000 --> 0:04:50.440 a number of states and you're probably familiar with it 0:04:50.600 --> 0:04:54.839 during the COVID period now have said, okay, if you 0:04:54.960 --> 0:04:58.080 have a paid leave program for some employees but not 0:04:58.240 --> 0:05:01.720 other employees, you must give it to a everybody. But generally, 0:05:02.600 --> 0:05:05.320 what this has really shown is that we really do 0:05:05.680 --> 0:05:11.279 need a paid leave program for all groups of workers, 0:05:11.279 --> 0:05:15.880 similar to what most other industrialized countries, certainly the European 0:05:16.000 --> 0:05:19.640 nations but also a number of Asian countries also have 0:05:19.800 --> 0:05:23.520 been providing to their employees and to their citizens. And 0:05:23.600 --> 0:05:28.200 so the COVID crisis has really put forward in front 0:05:28.240 --> 0:05:32.440 of our eyes all the inequities where the so called 0:05:32.520 --> 0:05:36.039 essential workers that were we are now celebrating that they're 0:05:36.080 --> 0:05:39.880 helping those of us who have the privilege like myself 0:05:39.920 --> 0:05:43.200 to be able to work at home on computers and 0:05:43.400 --> 0:05:47.480 to continue getting my pay. And I have paid sickly 0:05:47.600 --> 0:05:51.560 through through by employer. We are recognizing that many of 0:05:51.560 --> 0:05:55.400 these center workers, the lower wage workers, and mostly people 0:05:55.400 --> 0:05:58.719 of color, many immigrants, do not have these benfits, and 0:05:58.800 --> 0:06:01.920 so it's the time for us to re examine moving 0:06:02.000 --> 0:06:05.799 forward whether we want a society that is really living 0:06:05.920 --> 0:06:10.000 up to what the Constitution put forward in equality. Fool 0:06:10.640 --> 0:06:14.280 Coming up next? Can an employer fire you for engaging 0:06:14.320 --> 0:06:17.599 in protests? I'm jun Brasso and this is the bird 0:06:19.640 --> 0:06:22.480 I've been talking to Professor marrickros Saying of the City 0:06:22.560 --> 0:06:25.839 University of New York School of Law about steps businesses 0:06:25.839 --> 0:06:29.200 are taking to support their workers during this time. How 0:06:29.279 --> 0:06:34.320 far behind other countries as far as workers rights in 0:06:34.400 --> 0:06:40.960 this area is the US? We are way behind other countries. 0:06:41.000 --> 0:06:43.800 And if we just examine, you know, the countries that 0:06:43.880 --> 0:06:47.159 we have interacted with, that we trade with more the 0:06:47.920 --> 0:06:51.039 European Union countries that I'm not just talking about the 0:06:51.080 --> 0:06:57.640 Scandinavian countries. Many people will say, well, of course, Denmark, Sweden, Finland, Norway, 0:06:57.800 --> 0:07:02.760 they're different. They they've had a kind of social democracy. Um. 0:07:02.800 --> 0:07:05.560 But if we look at Germany, if we look at Spain, 0:07:05.680 --> 0:07:09.400 if we look at Italy, um, all these countries have 0:07:09.600 --> 0:07:14.960 paid leaf programs. They differ somewhere, UM, but they they 0:07:15.200 --> 0:07:20.080 have many programs that benefit all of their employees much 0:07:20.240 --> 0:07:22.520 more than we do. And of course, if you look 0:07:22.520 --> 0:07:25.960 at the health statistics we have been even before the 0:07:26.000 --> 0:07:29.119 COVID crisis, we have been way behind between in terms 0:07:29.120 --> 0:07:33.480 of instant mortality rates and maternal mortality rates during the 0:07:33.680 --> 0:07:38.640 pregnancy and childbirth, we are way behind. So now let's 0:07:38.680 --> 0:07:42.560 turn to another concern in this area, and that is 0:07:43.000 --> 0:07:46.760 so a lot of people are protesting. Can you be 0:07:46.920 --> 0:07:51.000 fired if your employer finds out you've been protesting peacefully 0:07:51.240 --> 0:07:54.280 and they don't like the look of it. There is 0:07:54.320 --> 0:07:59.320 no federal protection to people who are protesting legally, except 0:07:59.400 --> 0:08:02.760 if you are are a public employee because you have 0:08:02.920 --> 0:08:08.200 limited constitutional rights. But primarily the constitution does not apply 0:08:08.400 --> 0:08:13.040 to private sector employees. There are a few states that 0:08:13.120 --> 0:08:20.560 have statutes that prohibit employers from disciplining workers for outside 0:08:20.600 --> 0:08:26.400 activity lawful outside activity, um, California, New York, New Jersey, 0:08:26.440 --> 0:08:30.120 a few states, probably a few more. But this is 0:08:30.160 --> 0:08:33.120 something that I think that employers should look at very 0:08:33.200 --> 0:08:37.239 carefully and recognize that this is once again an inflection 0:08:37.280 --> 0:08:42.600 point in history where people are going out and demanding 0:08:42.880 --> 0:08:48.559 really structural changes not only at the workplace but throughout society. 0:08:49.000 --> 0:08:53.000 And I think that it would be beneficial to companies 0:08:53.040 --> 0:08:57.040 to recognize that they should participate in trying to make 0:08:57.080 --> 0:09:01.920 these structural reforms so that their employees can be fully 0:09:01.960 --> 0:09:05.680 contributing employees and that we could all be part of 0:09:05.679 --> 0:09:09.840 the society that is moving to heal as opposed to 0:09:09.920 --> 0:09:13.679 the tremendous divisions that we have. So is there a 0:09:13.720 --> 0:09:18.679 difference if an employee, let's say, is arrested during a protest. 0:09:18.720 --> 0:09:21.120 Does that make a difference even in those states that 0:09:21.240 --> 0:09:26.959 have laws about this, Well, you know generally those states 0:09:26.960 --> 0:09:30.360 would say we were talking about lawful activity. Um, But 0:09:30.440 --> 0:09:34.240 we have to be very careful about examining the arrest 0:09:34.360 --> 0:09:36.480 right now. First of all, there's a legal process that 0:09:36.559 --> 0:09:39.960 has to go through. And as we know that, there 0:09:39.960 --> 0:09:44.920 have been many instances of unlawful activity by the law 0:09:45.040 --> 0:09:49.640 enforcement agencies. For instance, in an example in New York 0:09:49.760 --> 0:09:53.960 City in the Bronx last week, there was a peaceful 0:09:54.000 --> 0:09:58.319 demonstration and there were legal observice, lawyers and law students 0:09:58.480 --> 0:10:02.240 who were clearly at identified and the mayor's order to 0:10:02.400 --> 0:10:07.440 the law enforcement agency, the NYPD was these legal observers 0:10:07.559 --> 0:10:09.960 have a right to be looking at what's going on. 0:10:10.840 --> 0:10:14.520 Ten of them were arrested. That's an unlawful arrest. But 0:10:14.679 --> 0:10:17.480 until the legal process goes on, and some of those 0:10:17.880 --> 0:10:22.000 lawyers might be working for different companies and they certainly 0:10:22.040 --> 0:10:26.760 should not be disciplined for that type of activity. There 0:10:26.800 --> 0:10:29.280 was an incident in Central Park that got a lot 0:10:29.280 --> 0:10:33.600 of publicity where a woman called police after an African 0:10:33.640 --> 0:10:36.200 American man asked her to put her dog on a leash, 0:10:36.240 --> 0:10:40.800 which is required in New York. She was fired. Is 0:10:40.840 --> 0:10:44.679 that kind of firing permissible? Can she appeal that? In 0:10:44.760 --> 0:10:50.160 any way? It is permissible? What what she actually did 0:10:50.440 --> 0:10:53.920 might not be unlawful, although I noticed that the state 0:10:54.280 --> 0:10:59.880 legislatures new state legislature yesterday pass some legislation which would 0:11:00.240 --> 0:11:04.000 cause that type of activity be the wilful in the future. 0:11:04.040 --> 0:11:07.880 If you call nine one one and reports something that 0:11:08.080 --> 0:11:11.319 is not true, that that would be a violation. That's 0:11:11.360 --> 0:11:15.319 criminal law. It's not so clear that that was a violation, 0:11:15.440 --> 0:11:17.839 but there might have been a violation. But yes, an 0:11:17.840 --> 0:11:23.440 employer could discipline and discharge that employee. That particular employer 0:11:23.559 --> 0:11:28.360 was concerned about their reputational harm with the publicity, uh, 0:11:28.960 --> 0:11:32.800 with this woman kind of being attached to them because 0:11:33.080 --> 0:11:37.160 her job and her employer were out there in the 0:11:37.280 --> 0:11:41.439 in the media. So I just wanted to sum this up. So, basically, 0:11:41.920 --> 0:11:45.000 workers who don't have contracts can be fired at will. 0:11:45.920 --> 0:11:50.040 So if an employer sees that you're involved in protest, 0:11:50.120 --> 0:11:55.440 let's say, an employer can basically fire that worker. That 0:11:55.600 --> 0:11:58.840 is correct except in those, um, you know, few states 0:11:58.840 --> 0:12:02.880 where there are states attutes. However, I would think that 0:12:02.960 --> 0:12:07.840 it would behoove employers at this moment a profound change 0:12:07.840 --> 0:12:13.600 in American history to look at that very carefully and say, well, 0:12:13.960 --> 0:12:18.000 maybe I actually will support the peaceful protests. The number 0:12:18.040 --> 0:12:21.800 of companies have actually indicated that they're going to make 0:12:21.960 --> 0:12:25.520 be making contributions to such organizations at the as the 0:12:25.679 --> 0:12:29.160 n a c T Legal Defense Funds, who are providing 0:12:29.320 --> 0:12:34.120 legal assistance to the protests and also providing assistance to 0:12:34.720 --> 0:12:38.000 to Congress and state legislatures, and in terms of trying 0:12:38.040 --> 0:12:43.120 to reform various laws, particularly around law enforcement issues. I 0:12:43.120 --> 0:12:46.400 think it might be curious to some workers that what 0:12:46.480 --> 0:12:49.280 they do in their private time, that an employer has 0:12:49.320 --> 0:12:52.040 anything to say about what they do in their private time. 0:12:53.200 --> 0:12:57.320 Absolutely you know, most employees believe that they have certain 0:12:57.360 --> 0:13:00.319 First Amendment rights and that what they do out side 0:13:00.320 --> 0:13:04.200 of work, they can do along as it's lawful. However, 0:13:04.480 --> 0:13:09.640 the Constitution does not apply to private sector employees and 0:13:10.000 --> 0:13:15.240 the employer. As you mentioned earlier, most employees of our 0:13:15.280 --> 0:13:20.480 employees will present. Unionized employees have certain protection, and some 0:13:20.920 --> 0:13:24.520 public employees have certain protections. But for the private sector 0:13:24.559 --> 0:13:27.760 employees who do not have contracts, and the only people 0:13:27.760 --> 0:13:31.679 who really have contracts of employment are high level management 0:13:31.679 --> 0:13:36.240 and executives. So all employees are employees at will, which 0:13:36.280 --> 0:13:41.040 means that employer can squire that employee for any reason whatsoever, 0:13:41.240 --> 0:13:45.199 accept an unlawful reason. It could be a bad reason, 0:13:45.240 --> 0:13:49.400 is stupid reason and irrational reason, but unless it's unlawful 0:13:49.480 --> 0:13:52.920 by a law, there is no protection for that employee. 0:13:53.200 --> 0:13:56.319 Thanks Rick. That's Merrick Ross saying of the City University 0:13:56.440 --> 0:14:02.640 of New York School of Law. It turned some legal 0:14:02.679 --> 0:14:06.960 heads when two lawyers known for policing workplace discrimination during 0:14:07.000 --> 0:14:11.360 the Obama administration joined Morgan Lewis, a huge law firm 0:14:11.440 --> 0:14:15.920 that often defends companies accused of violating workers rights. Bloomberg 0:14:15.960 --> 0:14:19.720 Law reporter Chris Offer talked to former Equal Employment Opportunity 0:14:19.760 --> 0:14:22.920 Commission member high Fell Bloom and her chief of staff, 0:14:22.960 --> 0:14:26.600 Sharon Massling, about leaving the plaintiff side of the labor 0:14:26.600 --> 0:14:30.480 and employment bar for their new roles as management side lawyers, 0:14:30.680 --> 0:14:33.360 and he joins me. Now, so Chris start by telling 0:14:33.440 --> 0:14:37.360 us about their careers up to this point. So these 0:14:37.400 --> 0:14:40.280 are a pair of civil rights attorneys who have dedicated 0:14:40.600 --> 0:14:45.560 UH the last several decades of their career to workplace advocacy, 0:14:45.760 --> 0:14:50.320 largely on the workers side UM, focusing in particular on 0:14:50.400 --> 0:14:55.920 issues like disability rights UH, sex discrimination, and harassment in 0:14:55.960 --> 0:14:59.880 the workplace. UM. The pair of folks who are se 0:15:00.320 --> 0:15:03.400 in the democratic side of the aisle when it comes 0:15:03.440 --> 0:15:07.840 to Capitol Hill. UH. Fell Bloom had started UM at 0:15:07.880 --> 0:15:09.960 the a c. L U as a lawyer working on 0:15:10.400 --> 0:15:15.360 legislative issues for their HIV AIDS project, went into academia 0:15:15.560 --> 0:15:20.240 and started a disability rights clinic, was heavily involved in 0:15:20.360 --> 0:15:24.680 efforts on Capitol Hill to pass legislation UH enacting gay 0:15:24.800 --> 0:15:28.640 rights UM, and then was tapped by former President Obama 0:15:28.840 --> 0:15:33.840 for a seat on the Equal Employment Opportunity Commission, where 0:15:33.880 --> 0:15:38.880 she served for two terms UH and was actually appointed 0:15:38.920 --> 0:15:42.320 for a third term by President Trump because the e 0:15:42.320 --> 0:15:45.200 E s C has designated Democrat seats, so she was 0:15:45.680 --> 0:15:48.520 appointed by Trump to fill Um one of the Democrats 0:15:48.520 --> 0:15:53.880 teats there. Uh that appointment. That nomination was scuttled as 0:15:53.920 --> 0:15:57.520 a result of some misgivings by a small group of 0:15:57.560 --> 0:16:02.360 Republicans led by Senators Um, Mike Lee and Marco Rubio. Uh. 0:16:02.480 --> 0:16:05.280 Fell Bloom, of course, was the E s c s 0:16:05.320 --> 0:16:10.360 first openly gay member, UM and again was a champion 0:16:10.520 --> 0:16:15.320 for some of the LGBT rights issues. UM and in 0:16:15.360 --> 0:16:19.280 a small group of Republicans UM were concerned, they said, 0:16:19.320 --> 0:16:23.520 about whether or not she could balance that advocacy with 0:16:23.600 --> 0:16:29.320 respect for employers religious rights. Um masling Um, who often 0:16:29.440 --> 0:16:33.520 is considered a sort of a sidekick for fell Bloom, 0:16:34.080 --> 0:16:37.080 Uh is no slaps in her own rights. These are 0:16:37.480 --> 0:16:42.200 you know, Harvard and one trained lawyer, Um who worked 0:16:42.240 --> 0:16:45.840 on Capitol Hill on the Democratic side of the aisles 0:16:45.880 --> 0:16:49.440 and worked in the Justice Department Civil Rights Division working 0:16:49.440 --> 0:16:53.480 on disability rights issues before joining the E s C 0:16:53.640 --> 0:16:57.360 and serving as Fell Blooms chief of staff. UM and 0:16:57.440 --> 0:17:02.160 so once Um Sell blooms nomination with scuttle last year, 0:17:02.800 --> 0:17:06.119 UH had to go looking for work and UM. What 0:17:06.280 --> 0:17:09.359 was surprising to some folks UM that has worked with 0:17:09.400 --> 0:17:12.479 them or know them was where they wound up going. 0:17:12.960 --> 0:17:16.040 UM gets It was late last year they announced that 0:17:16.080 --> 0:17:19.639 they were jumping ship and joining Morgan Lewis, which is 0:17:19.680 --> 0:17:24.960 one of these ships huge mega law firms. Morgan Lewis 0:17:25.240 --> 0:17:29.280 is known more as a defense firm. It's defended companies 0:17:29.320 --> 0:17:32.760 and even President Trump and his companies. So tell us 0:17:32.800 --> 0:17:36.200 a little bit about Morgan Lewis and what it stands for. 0:17:36.800 --> 0:17:40.639 So this is a huge global law firm UM that 0:17:40.840 --> 0:17:45.000 gets a large share of this income from UM advising 0:17:45.440 --> 0:17:48.480 a wide range of companies and employment matters and also 0:17:48.560 --> 0:17:51.680 defending them in court when they're accused of all all 0:17:51.720 --> 0:17:55.800 sorts of things from labor violations and union busting to 0:17:56.160 --> 0:18:02.000 employment discrimination and harassment. UM. Recently they've been UM defending 0:18:02.040 --> 0:18:04.720 Amazon and some of the notable litigation going on over 0:18:04.760 --> 0:18:08.680 there with respect to the company's treatment of workers and 0:18:08.840 --> 0:18:14.520 safety issues at Amazon facility. UM and so the firm 0:18:14.800 --> 0:18:17.639 also has been in the news recently because on the 0:18:17.680 --> 0:18:21.919 tax side that their tax practice represents President Trump and 0:18:22.000 --> 0:18:25.240 also the Trump organization in the wide range of the 0:18:25.400 --> 0:18:30.800 tax related issues UH stemming from uh, not only President 0:18:30.880 --> 0:18:36.240 Trump's UM refusal to release his tax his his personal 0:18:36.520 --> 0:18:40.800 UH income tax returns, but also some tax issues related 0:18:40.840 --> 0:18:43.560 to the Trump organization at large. You spoke to a 0:18:43.720 --> 0:18:48.520 Chicago lawyer who was surprised by Felblum's career move, as 0:18:48.560 --> 0:18:52.040 I expect many other lawyers are as well. What did 0:18:52.080 --> 0:18:56.640 she say? Yeah, Brenda Faith actually had had done the 0:18:56.800 --> 0:19:00.720 opposite which UM she had defended UM large law frooms 0:19:00.720 --> 0:19:05.119 that I'm sorry large employers that take our shop before 0:19:05.160 --> 0:19:09.040 flipping to the plainist side to represent workers and discrimination 0:19:09.080 --> 0:19:12.199 and related cases. And she and other attorneys that I 0:19:12.240 --> 0:19:15.199 spoke to on both sides of the political spectrum and 0:19:15.280 --> 0:19:19.320 on both sides of the UH labor management bar express 0:19:19.400 --> 0:19:22.879 some surprise, UM, just based on their experience having worked 0:19:22.880 --> 0:19:26.000 with Heelb women Massling and also being familiar with the 0:19:26.040 --> 0:19:28.840 body of work in their backgrounds in the issues they 0:19:28.840 --> 0:19:32.199 had focused on, that these two lawyers would jump ships 0:19:32.240 --> 0:19:36.600 and quote switch sides UM to a management firm known 0:19:36.680 --> 0:19:40.359 for defending companies accused the violation. Stay right there, Chris, 0:19:40.359 --> 0:19:43.520 We're going to continue this conversation and coming up next 0:19:43.520 --> 0:19:48.400 on Bloomberg Law, how the coronavirus pandemic disrupted the plans 0:19:48.480 --> 0:19:51.760 of Fell Bloom and mass Ling at their new firm, 0:19:51.800 --> 0:19:55.639 and later why the Trump administration keeps losing in court 0:19:55.760 --> 0:19:59.240 by ignoring climate change. And remember you can get the 0:19:59.320 --> 0:20:02.480 latest legal news on our Bloomberg Law podcast. You can 0:20:02.520 --> 0:20:06.399 find them on iTunes, SoundCloud or at Bloomberg dot com, 0:20:06.480 --> 0:20:11.000 slash podcast Slash Law. I'm June Grosso and this is Bloomberg. 0:20:13.640 --> 0:20:18.840 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:20:19.359 --> 0:20:22.800 I've been talking to Bloomberg Law reporter Chris Offer about 0:20:22.800 --> 0:20:27.480 two Obama civil rights lawyers switching signs. Chris, often we 0:20:27.680 --> 0:20:33.119 hear about lawyers who work their entire careers in government 0:20:33.440 --> 0:20:38.080 and at regulatory agencies, and then they make the switch 0:20:38.320 --> 0:20:42.240 to big law firms where they can command a lot 0:20:42.320 --> 0:20:47.159 of money because of their prior connections and prior experience. 0:20:47.200 --> 0:20:51.160 So is this really that surprising? So when I closed 0:20:51.200 --> 0:20:54.000 to all Bloom and Masking, they certainly recognize that this 0:20:54.040 --> 0:20:56.080 would be a pay bump for them, and it is 0:20:56.119 --> 0:20:59.680 not out of the ordinary, generally speaking for official belief 0:20:59.800 --> 0:21:03.040 of them in service and to command um a high 0:21:03.040 --> 0:21:06.920 price tag. Often in these large corporate law firms. We've 0:21:06.960 --> 0:21:09.680 seen a lot of that out of the Obama administration 0:21:09.760 --> 0:21:13.080 since President Obama left office, but there is a in 0:21:13.119 --> 0:21:16.400 the labor unemployment space that it is uh an oddity. 0:21:16.760 --> 0:21:19.840 UM are analysis show that she's sells Bloom, that is, 0:21:19.960 --> 0:21:23.679 is the first Democratic Commissioner to jump side after leaving 0:21:23.680 --> 0:21:27.879 the E s C in two decades UM. And what 0:21:28.000 --> 0:21:31.480 Publom and Measling said is that UM, in addition to 0:21:31.680 --> 0:21:34.800 the pay bump, UH, this is a situation that allows 0:21:34.840 --> 0:21:38.120 them to help companies do the right thing, to get 0:21:38.119 --> 0:21:41.399 in on the ground floor, to advise them on the 0:21:41.440 --> 0:21:44.800 front end, rather than defending them in court when they're 0:21:44.800 --> 0:21:48.159 facing a lawsuit. And they're focusing in particular on what 0:21:48.200 --> 0:21:52.199 they call workplace culture UM, which is an issue that 0:21:52.280 --> 0:21:53.879 they spent a lot of time on that the E 0:21:53.880 --> 0:21:58.160 E s C, particularly in the harassment realm UH following 0:21:58.200 --> 0:22:02.000 the Harvey line seen uh a UM both of them 0:22:02.040 --> 0:22:06.160 looking at this idea that workplaces can enhance their culture 0:22:06.640 --> 0:22:10.040 and sort of combat some of the latent harassment discrimination 0:22:10.119 --> 0:22:13.920 that may go on. UM. By actively managing that culture, 0:22:14.600 --> 0:22:18.200 I imagine they'll get a lot of clients who see 0:22:18.240 --> 0:22:22.920 them as sources of information about how the other side works. 0:22:23.680 --> 0:22:27.480 Absolutely if nothing else, you could see a client a 0:22:27.560 --> 0:22:30.159 company getting a letter from the e s C starting 0:22:30.200 --> 0:22:34.160 to ask questions about a particular case or allegation, UM, 0:22:34.200 --> 0:22:36.600 wanting to speak to people who are fresh off of 0:22:37.240 --> 0:22:40.439 working over there and have a really uh sort of 0:22:40.480 --> 0:22:43.400 insiders view as to how the agency works, how they 0:22:43.480 --> 0:22:47.159 handle these cases, UM, and how they prosecute them. In 0:22:47.200 --> 0:22:51.119 addition to that, UM, again it's it's sort of this 0:22:51.280 --> 0:22:54.760 idea that UM, if you put in the time and 0:22:54.880 --> 0:22:58.600 effort and make the commitment to work with some of 0:22:58.640 --> 0:23:01.680 these attorneys to address some of these issues and nipped 0:23:01.680 --> 0:23:04.119 them in the bud, it may very well save you 0:23:04.200 --> 0:23:06.240 on the back end by keeping you out of court 0:23:06.400 --> 0:23:09.800 or at least limiting your liability on the back end. 0:23:10.400 --> 0:23:14.480 So when did they join Morgan Lewis? Uh? It was 0:23:14.600 --> 0:23:16.919 right at the tail end of last year. So I 0:23:16.960 --> 0:23:19.600 want to say the announcement came out in this or 0:23:19.760 --> 0:23:27.960 of So then how has the pandemic affected their work? Right? So? UM, 0:23:28.000 --> 0:23:31.080 you know the Massing and Pelblem had planned to really 0:23:31.119 --> 0:23:36.040 focus on this advisory role, uh, particularly with respect to 0:23:36.720 --> 0:23:41.439 discrimination and harassment and addressing workplace culture in that space. UM. 0:23:41.520 --> 0:23:44.840 But they told me they found themselves shifting like pretty 0:23:44.920 --> 0:23:49.040 much everyone else who practices labor and employment law UM 0:23:49.280 --> 0:23:53.880 to tackling a wide range of questions posed by the coronavirus. 0:23:54.160 --> 0:23:57.560 Because both of them have a background and expertise and 0:23:57.680 --> 0:24:01.919 disability discrimination in particular, there UH they've been called on 0:24:02.080 --> 0:24:05.879 to UM taxle a wide range of questions related to 0:24:06.760 --> 0:24:13.280 UM testing employees for coronavirus, potentially testing employees for antibodies 0:24:13.840 --> 0:24:17.600 for the coronavirus, and a wide range of other issues 0:24:17.640 --> 0:24:21.080 related to the virus as companies start to think about 0:24:21.080 --> 0:24:24.760 opening their doors and potentially bringing workers back to the 0:24:24.840 --> 0:24:28.280 job and sell Bloom had a lot to do with 0:24:28.359 --> 0:24:32.760 the Americans with Disabilities Act. She did, yes, And I 0:24:32.920 --> 0:24:37.479 for one, UM would have guests that Congress UH thirty 0:24:37.560 --> 0:24:40.840 years ago when they passed the Americans with Disabilities Act, 0:24:41.240 --> 0:24:44.359 had no idea that any sort of pandemic the likes 0:24:44.440 --> 0:24:49.000 of coronavirus would be striking us now here three decades later. 0:24:49.040 --> 0:24:52.639 But what fell Bloom and Maslin said UM was that 0:24:52.760 --> 0:24:55.840 actually it strikes a very similar chord to a lot 0:24:55.880 --> 0:24:59.240 of the discussions that they had had regarding the HIV 0:24:59.440 --> 0:25:03.720 aid UM pandemic at the time the epidemics UM which 0:25:03.800 --> 0:25:06.920 was really piking. We're talking about the late eighties, early 0:25:07.000 --> 0:25:11.160 nineties UM. And and it was interesting what Felblum, who 0:25:11.240 --> 0:25:13.199 was working as an A C. L U lawyer at 0:25:13.200 --> 0:25:16.440 the time and was up on Capitol Hill advising them, 0:25:16.480 --> 0:25:20.760 particularly about HIV eight issues, said, UM, is that some 0:25:20.840 --> 0:25:23.080 of the language that's being used now to address the 0:25:23.119 --> 0:25:26.760 coronavirus UH is language that was written into the Act 0:25:27.280 --> 0:25:31.879 to address concerns from lawmakers regarding HIV eight. In your story, 0:25:31.920 --> 0:25:35.440 you discuss the question that employers are facing about whether 0:25:35.480 --> 0:25:39.240 an employee poses a direct threat tell us about that. 0:25:39.240 --> 0:25:42.680 That's right, it's a complicated analysis. The direct threat UM 0:25:42.720 --> 0:25:47.000 analysis comes into play with employees who do not have 0:25:47.160 --> 0:25:51.080 the virus but may have some underlying medical condition that 0:25:51.160 --> 0:25:56.879 makes them particularly susceptible UM to you know, a really 0:25:56.880 --> 0:25:59.639 bad bout of the virus or or maybe even death 0:26:00.040 --> 0:26:02.919 if they contract the viry. And the question is what 0:26:02.960 --> 0:26:06.159 can employees do and I'm sorry, what can employers do 0:26:06.720 --> 0:26:12.000 in those situations in regards to bringing those employees back 0:26:12.040 --> 0:26:16.280 into the workplace knowing that they may be particularly susceptible. 0:26:16.600 --> 0:26:18.639 And so what was written into the A. D. A 0:26:19.400 --> 0:26:22.560 UH to deal with the hiv A virus was this 0:26:22.680 --> 0:26:26.120 direct threat language. And what it says is that UH 0:26:26.119 --> 0:26:28.920 an employer making those kinds of decisions has to look 0:26:28.960 --> 0:26:32.240 at every employee individually, has to look at what sort 0:26:32.240 --> 0:26:36.879 of reasonable accommodations can be made um to protect that 0:26:37.040 --> 0:26:40.520 employee on the job UM, and then based on those 0:26:40.520 --> 0:26:44.520 reasonable accommodations, whether or not the employee would still constitute 0:26:44.600 --> 0:26:47.960 quote a direct threat either to the employee themselves or 0:26:48.040 --> 0:26:50.560 to their co workers. And if the answer is yes, 0:26:50.640 --> 0:26:53.520 there is a direct threat there, then the company can 0:26:53.560 --> 0:26:55.560 say we're not going to bring you back to the 0:26:55.640 --> 0:26:57.720 job right now. But they have to go through that 0:26:57.760 --> 0:27:01.280 whole uh you know, sort of comp like legal analysis 0:27:01.359 --> 0:27:05.960 before making that decision. So finally, Chris, did either of 0:27:06.000 --> 0:27:09.440 them tell you about any backlash they may have gotten 0:27:09.520 --> 0:27:13.760 from fellow lawyers about going to the other side. Not 0:27:13.960 --> 0:27:17.399 a lot, they acknowledged, maybe a couple of eyebrows rates 0:27:17.520 --> 0:27:19.960