1 00:00:03,200 --> 00:00:07,920 Speaker 1: This is Bloomberg Law with June Grosso from Bloomberg Radio. 2 00:00:10,400 --> 00:00:13,920 Speaker 1: What I'm really concerned about though, is could we legally 3 00:00:13,960 --> 00:00:15,360 Speaker 1: retrieve our embryos. 4 00:00:16,440 --> 00:00:20,920 Speaker 2: There's mostly concern, there's worry, there's some anger. 5 00:00:26,600 --> 00:00:31,400 Speaker 3: This is Bloomberg Law with June Grosso from Bloomberg Radio. 6 00:00:32,800 --> 00:00:36,320 Speaker 2: What I'm really concerned about though, is could we legally 7 00:00:36,360 --> 00:00:42,519 Speaker 2: retrieve our embryos. There's mostly concern, there's worry, there's some 8 00:00:42,720 --> 00:00:46,800 Speaker 2: anger as patients and physicians want to be able to 9 00:00:46,800 --> 00:00:50,400 Speaker 2: make these decisions together, collaboratively and not have these decisions 10 00:00:50,400 --> 00:00:52,360 Speaker 2: made for us and without our input. 11 00:00:52,920 --> 00:00:56,560 Speaker 4: Doctors and IVF patients are caught up in a mixture 12 00:00:56,560 --> 00:01:00,240 Speaker 4: of emotions and a lot of confusion after the Alibamma 13 00:01:00,320 --> 00:01:06,360 Speaker 4: Supreme Court's unprecedented decision that frozen embryos are children. The 14 00:01:06,440 --> 00:01:10,280 Speaker 4: decision means doctors like Mamy MacLean could now face criminal 15 00:01:10,400 --> 00:01:15,119 Speaker 4: charges or punitive damages if they discard unused frozen embryos, 16 00:01:15,280 --> 00:01:18,160 Speaker 4: which is a normal part of the iv process. 17 00:01:18,480 --> 00:01:21,160 Speaker 2: This ruling is so incomplete, and it leaves those of 18 00:01:21,200 --> 00:01:23,880 Speaker 2: us who are sitting face to face with patients just 19 00:01:23,920 --> 00:01:26,319 Speaker 2: with the inability to comment on what is safe and 20 00:01:26,360 --> 00:01:27,800 Speaker 2: what is legal for them Right. 21 00:01:27,680 --> 00:01:32,840 Speaker 4: Now, Alabama's largest hospital and several fertility clinics are pausing 22 00:01:32,920 --> 00:01:37,920 Speaker 4: in vitro fertilization treatments because of legal concerns, and patients 23 00:01:38,040 --> 00:01:41,160 Speaker 4: like Matt Clary and his wife are in limbo. They'd 24 00:01:41,200 --> 00:01:44,120 Speaker 4: plan to go through another round of IVF this summer, 25 00:01:44,400 --> 00:01:47,160 Speaker 4: but are now unsure whether it will be available. 26 00:01:47,560 --> 00:01:51,320 Speaker 1: Nobody has the answers of how do you navigate this? 27 00:01:51,920 --> 00:01:56,120 Speaker 4: Joining me is healthcare attorney Harry Nelson of Nelson Hardiman Harry. 28 00:01:56,400 --> 00:01:59,920 Speaker 4: The Alabama Supreme Court is the first court to rule 29 00:02:00,000 --> 00:02:05,080 Speaker 4: so that frozen embryos are children, citing anti abortion language 30 00:02:05,080 --> 00:02:08,880 Speaker 4: in Alabama's constitution. But the facts of this case are 31 00:02:08,960 --> 00:02:09,639 Speaker 4: rather odd. 32 00:02:10,240 --> 00:02:13,960 Speaker 5: It appears that this decision was the result of a 33 00:02:14,080 --> 00:02:17,679 Speaker 5: very calculated case. The case involved two families who had 34 00:02:17,720 --> 00:02:21,320 Speaker 5: had children through a fertility center and had additional embryos 35 00:02:21,480 --> 00:02:26,079 Speaker 5: stored at the center. Those embryos were destroyed in a 36 00:02:26,160 --> 00:02:30,680 Speaker 5: bizarre incident where another patient apparently walked into an unauthorized area, 37 00:02:30,800 --> 00:02:34,040 Speaker 5: opened a freezer, pulled out the storage container with the embryos. 38 00:02:34,120 --> 00:02:38,640 Speaker 5: The suffered immediate freezer burn and dropped the container, resulting 39 00:02:38,680 --> 00:02:41,720 Speaker 5: in the destruction, and so it doesn't seem obvious at 40 00:02:41,800 --> 00:02:45,119 Speaker 5: least to me that the natural response of someone who 41 00:02:45,480 --> 00:02:48,560 Speaker 5: had hoped to use an embryo for a future in 42 00:02:48,680 --> 00:02:52,320 Speaker 5: vitro fertilization would be, you know, to sue for wrongful 43 00:02:52,360 --> 00:02:55,400 Speaker 5: death of a minor. Right, yea, certainly people would be aggrieved. 44 00:02:55,440 --> 00:02:58,200 Speaker 5: But it certainly seems there's a calculated decision to bring 45 00:02:58,280 --> 00:03:01,959 Speaker 5: a case under this law. Law and challenged the destruction 46 00:03:02,160 --> 00:03:05,520 Speaker 5: to use this incident to test whether the loss of 47 00:03:05,560 --> 00:03:09,160 Speaker 5: an embryo in this manner could somehow be considered the 48 00:03:09,200 --> 00:03:12,679 Speaker 5: same as the death of a child. So that was 49 00:03:12,720 --> 00:03:14,880 Speaker 5: the legal theory they went forward on, and they lost 50 00:03:15,120 --> 00:03:18,359 Speaker 5: in the lower court, And then the Alabama Supreme Court 51 00:03:18,480 --> 00:03:22,600 Speaker 5: surprised most people by agreeing with the theory that the 52 00:03:22,680 --> 00:03:26,200 Speaker 5: parent who lost these embryos alleged, or that their lawyer's alleged, 53 00:03:26,280 --> 00:03:29,840 Speaker 5: which was that the accidental destruction of the embryos in 54 00:03:29,880 --> 00:03:33,040 Speaker 5: an embryo lab, I mean, a fertility center was the 55 00:03:33,200 --> 00:03:38,600 Speaker 5: legal equivalent of killing their children, that an embryo being 56 00:03:38,640 --> 00:03:41,960 Speaker 5: stored in this lab a fertilized embryo, which, according to 57 00:03:42,040 --> 00:03:44,840 Speaker 5: the testimony, was an equivalent of a few days old 58 00:03:45,040 --> 00:03:47,360 Speaker 5: into the pregnancy process, but less than a week that 59 00:03:47,440 --> 00:03:50,360 Speaker 5: that was the same as a fully born child who 60 00:03:50,400 --> 00:03:53,440 Speaker 5: had been killed. You know, it's an extreme position and 61 00:03:53,520 --> 00:03:56,600 Speaker 5: it raises all kinds of troubling implications for anybody who 62 00:03:56,760 --> 00:04:00,760 Speaker 5: is involved at all in the process of extracting, storing, 63 00:04:01,120 --> 00:04:05,120 Speaker 5: implanting embryos, handling them in any way. The simple meaning 64 00:04:05,120 --> 00:04:07,320 Speaker 5: of this case is that you are potentially, if anything 65 00:04:07,360 --> 00:04:11,400 Speaker 5: happens to these embryos, you are effectively committing the equivalent 66 00:04:11,400 --> 00:04:13,400 Speaker 5: of a homicide or a manslaughter of a child. 67 00:04:14,200 --> 00:04:19,440 Speaker 4: The common practice with a patient undergoing IVF, multiple embryos 68 00:04:19,480 --> 00:04:22,919 Speaker 4: are created right so that the patient can try again 69 00:04:23,200 --> 00:04:27,400 Speaker 4: if an attempt at pregnancy fail. So what kind of 70 00:04:27,480 --> 00:04:31,000 Speaker 4: problem does a decision like this create, right? 71 00:04:31,120 --> 00:04:33,560 Speaker 5: You know, it's a difficult procedure in which there's no 72 00:04:33,680 --> 00:04:37,400 Speaker 5: certainty that a single embryo will implant. In fact, if 73 00:04:37,400 --> 00:04:39,719 Speaker 5: you go back just twenty years ago, prior to the 74 00:04:39,760 --> 00:04:43,880 Speaker 5: octomom case, it was common practice for many fertility doctors 75 00:04:44,279 --> 00:04:48,000 Speaker 5: to implant the significantly larger numbers of embryos to see 76 00:04:48,000 --> 00:04:51,040 Speaker 5: which ones would succeed. And it's still a common practice 77 00:04:51,120 --> 00:04:54,359 Speaker 5: to implant smaller numbers of multiple embryos, which is one 78 00:04:54,400 --> 00:04:56,720 Speaker 5: of the reasons we see a lot more twins resulting 79 00:04:56,839 --> 00:05:00,440 Speaker 5: from IVF. The problem now is that, based on the case, 80 00:05:00,640 --> 00:05:04,599 Speaker 5: the handling of those embryos is effectively the handling of 81 00:05:04,960 --> 00:05:08,479 Speaker 5: live children. I don't know, between the age of one 82 00:05:08,520 --> 00:05:12,120 Speaker 5: day old newborn to seventeen year olds. Those embryos have 83 00:05:12,200 --> 00:05:15,400 Speaker 5: the same legal status as those children. And these are 84 00:05:15,560 --> 00:05:19,960 Speaker 5: embryos that are in the hands of labs, doctors, hospitals, 85 00:05:20,320 --> 00:05:24,640 Speaker 5: surgery centers, and really a world of new questions of 86 00:05:24,680 --> 00:05:28,440 Speaker 5: what their responsibilities are, Like what happens if the power 87 00:05:28,480 --> 00:05:31,000 Speaker 5: goes off and there's a destruction that way, What happens 88 00:05:31,000 --> 00:05:33,680 Speaker 5: if they aren't used and they're simply sitting there is 89 00:05:33,720 --> 00:05:37,160 Speaker 5: there any consequence if they're no longer usable, What happens 90 00:05:37,240 --> 00:05:39,880 Speaker 5: if there's a dispute between the parents? What is their status? 91 00:05:39,880 --> 00:05:42,800 Speaker 5: They are no longer property, they are live right. So 92 00:05:42,920 --> 00:05:46,120 Speaker 5: this is a radical new legal world that we've entered 93 00:05:46,200 --> 00:05:46,920 Speaker 5: with this decision. 94 00:05:47,440 --> 00:05:52,239 Speaker 4: Usually the parents have the right to decide what happens 95 00:05:52,279 --> 00:05:55,360 Speaker 4: to embryos that are not used. 96 00:05:55,720 --> 00:05:59,280 Speaker 5: Correct until now and in every other state, embryos are 97 00:06:00,040 --> 00:06:05,200 Speaker 5: effectively property. The parents have full discretion over what to 98 00:06:05,240 --> 00:06:08,640 Speaker 5: do with them. Parents can decide if they don't want 99 00:06:08,680 --> 00:06:12,080 Speaker 5: to pursue further privs, and there were remaining embryos, they 100 00:06:12,080 --> 00:06:16,120 Speaker 5: could simply demand that they be destroyed, and they would 101 00:06:16,120 --> 00:06:19,880 Speaker 5: be destroyed like any other kind of tissue in a lab, right, 102 00:06:20,040 --> 00:06:22,200 Speaker 5: And it's not that they would have hero value, but 103 00:06:22,240 --> 00:06:25,520 Speaker 5: they would not have the value accorded under Alabama law 104 00:06:25,600 --> 00:06:27,719 Speaker 5: to a life, and they would not be facing the 105 00:06:27,760 --> 00:06:31,680 Speaker 5: dire consequences of having essentially taken a life by the 106 00:06:31,720 --> 00:06:34,720 Speaker 5: negligence of allowing a patient a third party to get 107 00:06:34,760 --> 00:06:38,880 Speaker 5: into the facility. So all kinds of really scary implications 108 00:06:38,920 --> 00:06:40,960 Speaker 5: about what this new status means. 109 00:06:41,240 --> 00:06:45,080 Speaker 4: Also, can you do genetic testing on embryos? 110 00:06:45,120 --> 00:06:48,240 Speaker 5: Then the question of whether you can do genetic testing 111 00:06:48,320 --> 00:06:50,600 Speaker 5: or what you can do to these embryos short of 112 00:06:50,720 --> 00:06:54,080 Speaker 5: destroying them is a really interesting question. There's nothing in 113 00:06:54,120 --> 00:06:58,080 Speaker 5: this decision that suggests that you couldn't do genetic testing. However, 114 00:06:58,720 --> 00:07:02,040 Speaker 5: any time that you have any kind of contact with, 115 00:07:02,240 --> 00:07:06,960 Speaker 5: you know, embryonic tissue, you are effectively potentially taking a risk. Right, 116 00:07:07,000 --> 00:07:10,360 Speaker 5: there is a risk that the extraction, even though it's 117 00:07:10,440 --> 00:07:13,320 Speaker 5: often done safely. I think doctor's rul routinely tell patients, 118 00:07:13,360 --> 00:07:15,720 Speaker 5: there is a chance that this will result in destruction. 119 00:07:15,880 --> 00:07:19,200 Speaker 5: So I think genetic testing just became in this context, 120 00:07:19,240 --> 00:07:23,200 Speaker 5: became basically off limits in Alabama because it could result 121 00:07:23,640 --> 00:07:26,720 Speaker 5: in the destruction of a tissue and therefore essentially a killing. 122 00:07:27,240 --> 00:07:30,280 Speaker 4: And this is a decision where the court hands down 123 00:07:30,360 --> 00:07:36,120 Speaker 4: this radical decision and then just says, Okay, we're done, 124 00:07:36,200 --> 00:07:40,240 Speaker 4: and the implications are left to I don't know, the 125 00:07:40,280 --> 00:07:45,480 Speaker 4: medical profession, patience, the legislature who. 126 00:07:45,320 --> 00:07:48,200 Speaker 5: Decides yeah, it's you know, this decision in many ways 127 00:07:48,320 --> 00:07:51,120 Speaker 5: reminds me it sort of parallels the DA decision itself, 128 00:07:51,120 --> 00:07:53,440 Speaker 5: which revealed Roe v. Wade in the sense that the 129 00:07:53,440 --> 00:07:57,360 Speaker 5: Supreme Court said, we'reishing this proclamation that rowan too far, 130 00:07:57,440 --> 00:07:59,800 Speaker 5: and we're kicking it back to the states to this 131 00:08:00,320 --> 00:08:02,840 Speaker 5: and there was this almost like assumption that the problem 132 00:08:02,880 --> 00:08:05,000 Speaker 5: would just sort itself out at the state level, and 133 00:08:05,040 --> 00:08:08,200 Speaker 5: in fact, we've gotten a result of national chaos over 134 00:08:08,640 --> 00:08:11,920 Speaker 5: the last nearly two years. And this decision does exactly 135 00:08:11,960 --> 00:08:15,600 Speaker 5: the same thing in this smaller context of IVF and 136 00:08:15,640 --> 00:08:19,120 Speaker 5: Alabama and embryos, because it's created a world of chaos 137 00:08:19,120 --> 00:08:23,240 Speaker 5: where all these different actors parents who are considering IVF 138 00:08:23,680 --> 00:08:28,160 Speaker 5: and fertility treatment, fertility doctors, hospitals, health systems, medical school 139 00:08:28,160 --> 00:08:32,520 Speaker 5: training programs, storage companies. Everybody's got to make these new decisions, 140 00:08:32,880 --> 00:08:36,240 Speaker 5: and there will certainly be new regulations, but there's a 141 00:08:36,280 --> 00:08:39,920 Speaker 5: lot of personal decisions just to sort of avoid this 142 00:08:40,040 --> 00:08:43,880 Speaker 5: whole uncertain, chaotic environment in favor of going to states 143 00:08:43,880 --> 00:08:47,000 Speaker 5: where this is totally uncontroversial territory, Harry. 144 00:08:47,040 --> 00:08:50,200 Speaker 4: Some doctors are saying that patients because of this could 145 00:08:50,240 --> 00:08:54,520 Speaker 4: have to endure longer and more costly treatments to try 146 00:08:54,559 --> 00:08:57,960 Speaker 4: to achieve a pregnancy if they're only allowed to create 147 00:08:58,400 --> 00:09:02,440 Speaker 4: one embryo per cycle, and one cycle of IVF now 148 00:09:02,520 --> 00:09:06,680 Speaker 4: calls about fifteen to twenty five thousand dollars. Tell us 149 00:09:06,720 --> 00:09:08,480 Speaker 4: a little about the process. 150 00:09:08,640 --> 00:09:10,880 Speaker 5: The process, if you speak to any woman who's had it, 151 00:09:10,960 --> 00:09:12,640 Speaker 5: or couples that have gone through it, is it's quite 152 00:09:12,679 --> 00:09:16,360 Speaker 5: an intensive process to prepare for it, for the extraction 153 00:09:16,400 --> 00:09:19,079 Speaker 5: of the eggs, and then essentially the fertilization of the 154 00:09:19,120 --> 00:09:21,760 Speaker 5: sperm and egg happened in the lab, and then once 155 00:09:21,840 --> 00:09:25,439 Speaker 5: there's confirmed fertilization and just a little bit of growth 156 00:09:25,559 --> 00:09:28,120 Speaker 5: of the embryo, it is then implanted. And you know, 157 00:09:28,160 --> 00:09:31,360 Speaker 5: there's a question of whether the women's uterusm will accept 158 00:09:31,360 --> 00:09:34,640 Speaker 5: the tissue and whether it will attach appropriately, and then 159 00:09:34,760 --> 00:09:38,040 Speaker 5: there continue to be questions and a risk of unsuccessful 160 00:09:38,040 --> 00:09:42,560 Speaker 5: implantation or miscarriage is a very significant risk. This is 161 00:09:42,559 --> 00:09:47,600 Speaker 5: an amazing miracle of reproductive health technology that's a dance fertility, 162 00:09:47,640 --> 00:09:49,920 Speaker 5: and in recent decades that's made this a possibility. But 163 00:09:50,000 --> 00:09:52,600 Speaker 5: I'd personally know multiple couples that have had to go 164 00:09:52,640 --> 00:09:55,800 Speaker 5: through round after round of this procedure, and that was 165 00:09:55,840 --> 00:10:01,000 Speaker 5: with implanting multiple embryos just to get to success full pregnancy. 166 00:10:01,040 --> 00:10:04,960 Speaker 5: And so basically this has eliminated the possibility of more 167 00:10:05,000 --> 00:10:08,280 Speaker 5: than one embryo being implanted, and it means that the 168 00:10:08,280 --> 00:10:13,120 Speaker 5: odds of each treatment of each IVF attempt are now reduced. 169 00:10:13,200 --> 00:10:15,360 Speaker 5: If you do it in Alabama, where you certainly can't 170 00:10:15,400 --> 00:10:17,959 Speaker 5: do more than one embryo, and it's become higher risk. 171 00:10:18,000 --> 00:10:20,960 Speaker 5: I suppose most fertility doctors would probably do two and 172 00:10:21,040 --> 00:10:23,560 Speaker 5: allow for the possibility of twins if that's acceptable to 173 00:10:23,640 --> 00:10:27,600 Speaker 5: the mother. But you're really still really narrowing the chances 174 00:10:27,640 --> 00:10:31,840 Speaker 5: of a successful implantation and a successful pregnancy delivered to terms. 175 00:10:31,880 --> 00:10:33,600 Speaker 5: So it's very likely that women will have to do 176 00:10:33,640 --> 00:10:36,199 Speaker 5: this more. And that also is compounded by the fact that, 177 00:10:36,520 --> 00:10:40,000 Speaker 5: in addition to being difficult and emotionally stressful, it's extremely 178 00:10:40,040 --> 00:10:43,760 Speaker 5: expensive and very few people have the resources to repeat 179 00:10:43,800 --> 00:10:48,160 Speaker 5: this process over and over again without significant financial backing. 180 00:10:48,640 --> 00:10:52,000 Speaker 4: As we said, the ruling is only valid in Alabama, 181 00:10:52,120 --> 00:10:56,199 Speaker 4: but at least eleven states have broadly defined personhood is 182 00:10:56,360 --> 00:11:00,520 Speaker 4: beginning at fertilization in their state laws. So can we 183 00:11:00,640 --> 00:11:06,000 Speaker 4: expect the anti abortion movement to start pushing decisions like 184 00:11:06,040 --> 00:11:07,480 Speaker 4: this in other states? 185 00:11:08,080 --> 00:11:08,280 Speaker 1: Yeah? 186 00:11:08,320 --> 00:11:13,040 Speaker 5: Absolutely. I think that the logic of the decision here 187 00:11:13,200 --> 00:11:16,720 Speaker 5: is something that the right to life movement is supportive of, 188 00:11:17,080 --> 00:11:20,120 Speaker 5: which is sort of treating embryos with more sanctity in 189 00:11:20,160 --> 00:11:23,920 Speaker 5: all of these states and eliminating practices that have bothered 190 00:11:24,000 --> 00:11:25,600 Speaker 5: them for a long time. Right, Like I said, we 191 00:11:25,800 --> 00:11:28,720 Speaker 5: already in the last fifteen years, certain practices in fertility 192 00:11:28,840 --> 00:11:32,120 Speaker 5: have already gone away under pressure, including the practice of 193 00:11:32,320 --> 00:11:35,600 Speaker 5: implanting multiple embryos and then doing a reduction to remove 194 00:11:35,640 --> 00:11:37,920 Speaker 5: embryos to get to the right number. It would not 195 00:11:37,960 --> 00:11:40,040 Speaker 5: be surprising to be the law in all of these states, 196 00:11:40,040 --> 00:11:42,880 Speaker 5: and it is a logical implication of saying that life 197 00:11:42,920 --> 00:11:45,720 Speaker 5: begins at conception. I mean it would require some different 198 00:11:45,840 --> 00:11:51,480 Speaker 5: articulation that would potentially devalue what's occurring at conception or 199 00:11:51,520 --> 00:11:54,560 Speaker 5: immediately after to say otherwise. So I think this position 200 00:11:54,640 --> 00:11:57,600 Speaker 5: is going to be supported by the pro life community, 201 00:11:57,720 --> 00:11:58,960 Speaker 5: and I think the rest of us are going to 202 00:11:58,960 --> 00:12:00,880 Speaker 5: have to figure out how to deal with it. 203 00:12:01,200 --> 00:12:03,800 Speaker 4: Would you say this is a new chapter in the 204 00:12:04,040 --> 00:12:07,080 Speaker 4: continuing fight over women's reproductive rights. 205 00:12:07,640 --> 00:12:09,360 Speaker 5: Yeah, I do think this is in the sense of 206 00:12:09,360 --> 00:12:11,760 Speaker 5: new chapter. I don't think people should be surprised, right, 207 00:12:11,800 --> 00:12:14,360 Speaker 5: I think that we've seen the implications already pose the 208 00:12:14,400 --> 00:12:17,160 Speaker 5: repeal of Roe v. Wade with regard to not just abortion, 209 00:12:17,280 --> 00:12:20,800 Speaker 5: but with regards to miscarriage treatment and seeing it extended 210 00:12:20,840 --> 00:12:24,199 Speaker 5: into fertility. This is something that was absolutely predicted right 211 00:12:24,240 --> 00:12:27,400 Speaker 5: after the repeal, not surprising. People should not be surprised 212 00:12:27,440 --> 00:12:32,080 Speaker 5: to see contraception be the next battlefield. And these questions 213 00:12:32,120 --> 00:12:35,280 Speaker 5: all are really going to push at what most of 214 00:12:35,360 --> 00:12:39,239 Speaker 5: us have accepted as the traditional you know, right round reproduction, 215 00:12:39,559 --> 00:12:42,160 Speaker 5: reproductive health access that women had, and that all of 216 00:12:42,200 --> 00:12:44,400 Speaker 5: us that none of it should surprise anybody who was 217 00:12:44,440 --> 00:12:47,440 Speaker 5: thinking through the implications when this repeal happened, and there 218 00:12:47,440 --> 00:12:48,079 Speaker 5: were sure to. 219 00:12:48,040 --> 00:12:51,760 Speaker 4: Be more ripple effects of the Supreme Court overturning Row. 220 00:12:52,240 --> 00:12:55,920 Speaker 4: Thanks so much, Harry. That's Harry Nelson of Nelson Hardiman. 221 00:12:56,360 --> 00:13:00,440 Speaker 4: I'm June Grasso, and you're listening to Bloomberg Day. Between 222 00:13:00,440 --> 00:13:02,360 Speaker 4: now and November, the American people are going to know 223 00:13:03,400 --> 00:13:05,800 Speaker 4: that the only reason the border is not secure is 224 00:13:05,880 --> 00:13:09,720 Speaker 4: Donald Trump and as maga Republican friends. And it seems 225 00:13:09,760 --> 00:13:13,160 Speaker 4: like President Joe Biden is trying to keep that promise 226 00:13:13,240 --> 00:13:16,920 Speaker 4: of showing up Trump and Republicans who killed the biparties 227 00:13:16,960 --> 00:13:20,319 Speaker 4: in border deal by making some changes of his own. 228 00:13:20,840 --> 00:13:25,880 Speaker 4: The Biden administration is considering taking unilateral executive action using 229 00:13:25,960 --> 00:13:30,440 Speaker 4: provisions of federal immigration law repeatedly tapped by former President 230 00:13:30,480 --> 00:13:34,040 Speaker 4: Donald Trump, to enact a crackdown at the southern border. 231 00:13:34,520 --> 00:13:38,800 Speaker 4: According to Bloomberg's sources, the administration has been exploring options 232 00:13:38,840 --> 00:13:42,640 Speaker 4: that Biden could deploy on his own without congressional approval, 233 00:13:43,040 --> 00:13:45,960 Speaker 4: but it's far from clear that the measures could withstand 234 00:13:46,160 --> 00:13:49,800 Speaker 4: almost certain court challenges. Here to tell us about them 235 00:13:49,960 --> 00:13:52,960 Speaker 4: is Leon Fresco, a partner at Holland and Knight. He 236 00:13:53,080 --> 00:13:55,440 Speaker 4: was the former head of the Office of Civil Immigration 237 00:13:55,600 --> 00:13:59,040 Speaker 4: Litigation in the Obama administration. So Leon tell us what 238 00:13:59,200 --> 00:14:00,880 Speaker 4: measures Biden is considering. 239 00:14:01,280 --> 00:14:04,800 Speaker 1: President Biden is considering a number of options, which some 240 00:14:04,880 --> 00:14:07,280 Speaker 1: of them have been tried in the past and some 241 00:14:07,480 --> 00:14:11,319 Speaker 1: have been rejected in the past because of questions about 242 00:14:11,320 --> 00:14:13,719 Speaker 1: their legality. But let me take you through them. So 243 00:14:14,400 --> 00:14:18,840 Speaker 1: the most important in terms of impact would be trying 244 00:14:18,880 --> 00:14:22,360 Speaker 1: to take what is normally known as the travel ban statues, 245 00:14:22,800 --> 00:14:27,520 Speaker 1: which is INA Section to twelve F, and actually saying 246 00:14:27,560 --> 00:14:32,280 Speaker 1: that it can be used to remove people whose bodies 247 00:14:32,320 --> 00:14:35,800 Speaker 1: have already entered the United States without letting them apply 248 00:14:35,920 --> 00:14:39,600 Speaker 1: for asylum. Trump tried this, and the reason it didn't 249 00:14:39,640 --> 00:14:44,000 Speaker 1: work is because the two twelve F travel ban statues 250 00:14:44,320 --> 00:14:48,240 Speaker 1: uses this very interesting word in the immigration law, entry 251 00:14:48,560 --> 00:14:52,880 Speaker 1: into the United States. But the problem is, under millions 252 00:14:52,880 --> 00:14:55,720 Speaker 1: of cases that exist in immigration law, and you know, 253 00:14:55,720 --> 00:14:58,000 Speaker 1: all the way up to the Supreme Court, this word 254 00:14:58,280 --> 00:15:03,560 Speaker 1: entry means preventing the actual body from answering the United States. 255 00:15:03,680 --> 00:15:07,560 Speaker 1: But once you've entered, then what's needed is a deportation. 256 00:15:08,400 --> 00:15:12,600 Speaker 1: And so what the travel band statue prevents is an entry. 257 00:15:12,680 --> 00:15:15,320 Speaker 1: But the entry here has already occurred, and so the 258 00:15:15,400 --> 00:15:18,960 Speaker 1: question is, can you use this travel band statute deport 259 00:15:19,040 --> 00:15:24,440 Speaker 1: someone without going through the normal deportation process, and that's 260 00:15:24,440 --> 00:15:26,600 Speaker 1: going to be ultimately a question for the courts. But 261 00:15:26,680 --> 00:15:30,440 Speaker 1: most likely is that's not going to be allowed because 262 00:15:30,480 --> 00:15:34,040 Speaker 1: that wasn't allowed under the Trump administration. Even though that 263 00:15:34,120 --> 00:15:36,960 Speaker 1: specific question didn't work its way all the way up 264 00:15:37,000 --> 00:15:39,480 Speaker 1: to the Supreme Court. That is one of the things 265 00:15:39,520 --> 00:15:42,160 Speaker 1: that they're discussing. The question is how likely it will 266 00:15:42,200 --> 00:15:44,040 Speaker 1: be to succeed. It Just that's number one. 267 00:15:44,120 --> 00:15:46,080 Speaker 4: Let me just stop you a minute. So in that 268 00:15:46,240 --> 00:15:51,480 Speaker 4: case they would take migrants to enter the country and immediately. 269 00:15:50,920 --> 00:15:54,840 Speaker 1: Deport them right Their argument would be employing I Ina 270 00:15:54,960 --> 00:15:58,520 Speaker 1: too twelve f the ban on entry statutes to say 271 00:15:58,560 --> 00:16:01,440 Speaker 1: that even though you've entered, we're not gonna let you 272 00:16:01,640 --> 00:16:06,760 Speaker 1: answer because you've entered illegally. Entry means legal entry, and 273 00:16:06,840 --> 00:16:10,320 Speaker 1: so we're banning any kind of illegal entry. And so 274 00:16:10,440 --> 00:16:12,200 Speaker 1: once we find you, we're allowed to kick you out 275 00:16:12,200 --> 00:16:15,440 Speaker 1: without getting asylum, without any due process of any kind. 276 00:16:15,640 --> 00:16:19,800 Speaker 1: Any look to see about asylum or any trafficking or 277 00:16:19,840 --> 00:16:22,480 Speaker 1: anything else. That's not going to be our concern. We're 278 00:16:22,520 --> 00:16:25,320 Speaker 1: just gonna take you and move you right back into 279 00:16:25,360 --> 00:16:28,360 Speaker 1: Mexico without any of that. And so the question will 280 00:16:28,360 --> 00:16:32,360 Speaker 1: be does this ability that decides you give to prevent 281 00:16:32,560 --> 00:16:36,880 Speaker 1: an entry work after an entry has already been made 282 00:16:37,280 --> 00:16:41,040 Speaker 1: in a case where the entry made was illegal, And 283 00:16:41,080 --> 00:16:43,000 Speaker 1: so that's gonna be the question that a court will 284 00:16:43,000 --> 00:16:44,000 Speaker 1: have to determine. 285 00:16:44,520 --> 00:16:48,040 Speaker 4: I'm sure that that definition of entry doesn't meet the 286 00:16:48,240 --> 00:16:53,120 Speaker 4: Merriam Webster Dictionary definition, but legal interpretation is another thing. 287 00:16:53,440 --> 00:16:56,600 Speaker 4: But it sounds like that wouldn't pass legal scrutiny when 288 00:16:56,600 --> 00:16:58,680 Speaker 4: it's challenged, which it surely will be. 289 00:16:59,040 --> 00:17:02,240 Speaker 1: It may also be that the Biden administration doesn't care 290 00:17:02,280 --> 00:17:04,640 Speaker 1: if that gets a join because at least from their 291 00:17:04,680 --> 00:17:07,720 Speaker 1: per sective, they can say, look, we tried. Do you 292 00:17:07,840 --> 00:17:11,520 Speaker 1: now see that this takes Congress, Congress down back to you. 293 00:17:12,160 --> 00:17:15,800 Speaker 4: The Biden administration is also discussing ways to make it 294 00:17:15,880 --> 00:17:20,200 Speaker 4: harder for migrants to pass the initial screening for asylum seekers, 295 00:17:20,880 --> 00:17:23,680 Speaker 4: essentially raising the standard tell us about that. 296 00:17:24,280 --> 00:17:27,520 Speaker 1: The standard right now is called credible fear, And what 297 00:17:27,680 --> 00:17:29,600 Speaker 1: that says under the law is do you have a 298 00:17:29,640 --> 00:17:36,560 Speaker 1: significant possibility of having an asylum case that's plausible? And 299 00:17:36,880 --> 00:17:40,240 Speaker 1: the issue is that there is some dicta in the court. 300 00:17:40,480 --> 00:17:43,399 Speaker 1: This is not binding law, but it's pretty strong dicta 301 00:17:43,520 --> 00:17:46,360 Speaker 1: that even for an asylum case, you have to show 302 00:17:46,400 --> 00:17:49,320 Speaker 1: that you have a ten percent chance of being persecuted 303 00:17:49,359 --> 00:17:52,880 Speaker 1: in your home country. So this credible fear standard is 304 00:17:52,960 --> 00:17:56,080 Speaker 1: do you have a significant possibility of having a ten 305 00:17:56,119 --> 00:18:00,360 Speaker 1: percent chance? And so if a pretty lenient standard, and 306 00:18:00,440 --> 00:18:03,439 Speaker 1: so what that means is a lot of people qualified. 307 00:18:03,480 --> 00:18:07,720 Speaker 1: Now if you raise the standard, many people believe Congress 308 00:18:07,760 --> 00:18:10,080 Speaker 1: is the one that needs to do that, because every 309 00:18:10,080 --> 00:18:13,440 Speaker 1: single time that the government has tried to raise the standard, 310 00:18:13,880 --> 00:18:16,560 Speaker 1: whether they do it on paper or whether they do 311 00:18:16,640 --> 00:18:18,960 Speaker 1: it verbally, they kind of give a hint in so 312 00:18:19,119 --> 00:18:22,240 Speaker 1: the agents look start finding ways to deny these claims. 313 00:18:22,680 --> 00:18:26,080 Speaker 1: The advocates figure it out, they sue, and they enjoy 314 00:18:26,640 --> 00:18:29,840 Speaker 1: whatever new move was done, because the law is actually 315 00:18:29,840 --> 00:18:34,320 Speaker 1: pretty firm that it's this specific credible fear standard that 316 00:18:34,400 --> 00:18:37,439 Speaker 1: must be applied at the moment until such time as 317 00:18:37,520 --> 00:18:38,520 Speaker 1: Congress changes it. 318 00:18:38,920 --> 00:18:42,359 Speaker 4: All right, that makes two that seem unlikely to withstand 319 00:18:42,440 --> 00:18:45,000 Speaker 4: court challenges. What else are they discussing? 320 00:18:45,440 --> 00:18:48,320 Speaker 1: So then the next few possibilities are these sort of 321 00:18:48,920 --> 00:18:53,080 Speaker 1: more acnee tried and truth. Always they try to do 322 00:18:53,119 --> 00:18:56,639 Speaker 1: this and they never work. Resolutions like for instance, moving 323 00:18:56,720 --> 00:19:00,920 Speaker 1: to a last in, first out processing to them, which 324 00:19:00,960 --> 00:19:04,080 Speaker 1: what they say is, okay, let's just clear the decks 325 00:19:04,760 --> 00:19:08,760 Speaker 1: of the millions of cases that we have for deportation, 326 00:19:08,880 --> 00:19:12,440 Speaker 1: which is making things take many months. Let's just immediately 327 00:19:12,480 --> 00:19:16,280 Speaker 1: put someone who comes tomorrow into the court so that way, 328 00:19:16,359 --> 00:19:20,159 Speaker 1: at least these new cases are moving quickly and we 329 00:19:20,359 --> 00:19:24,040 Speaker 1: can get them process. But what happens is that never 330 00:19:24,160 --> 00:19:27,320 Speaker 1: works because the person then says, I haven't found the 331 00:19:27,400 --> 00:19:30,320 Speaker 1: lawyer yet, and there's case law about getting people a 332 00:19:30,440 --> 00:19:33,119 Speaker 1: chance to find the lawyer, and so you have to 333 00:19:33,119 --> 00:19:35,880 Speaker 1: give them several weeks to do that. And then once 334 00:19:35,920 --> 00:19:39,720 Speaker 1: you've done that, then you've already moved from this urgent 335 00:19:40,119 --> 00:19:44,160 Speaker 1: processing point and we're back to square one again. So 336 00:19:44,480 --> 00:19:47,680 Speaker 1: that issue of can we clear the decks and move 337 00:19:47,760 --> 00:19:52,359 Speaker 1: cases quickly has unfortunately, And let's we're going to start 338 00:19:52,400 --> 00:19:56,480 Speaker 1: assigning people lawyers so that then they have to make 339 00:19:56,520 --> 00:19:59,240 Speaker 1: their asylum case on the spot. That would be a 340 00:19:59,280 --> 00:20:03,080 Speaker 1: way you could people through the court quickly, But I 341 00:20:03,119 --> 00:20:06,280 Speaker 1: don't think Congress has given enough funding to make that 342 00:20:06,320 --> 00:20:10,440 Speaker 1: succeed at any grand scale, And I think people would 343 00:20:10,480 --> 00:20:13,760 Speaker 1: be against that on the conservative side because they would say, 344 00:20:13,760 --> 00:20:17,320 Speaker 1: why are you getting free lawyers to the foreign nationals 345 00:20:17,320 --> 00:20:20,359 Speaker 1: coming illegally. But the problem is is if you don't 346 00:20:20,400 --> 00:20:22,480 Speaker 1: do that, there's all the Staate well that says you 347 00:20:22,560 --> 00:20:25,639 Speaker 1: have to give people a reasonable tine period to find 348 00:20:25,680 --> 00:20:29,199 Speaker 1: a lawyer, which then subverts this ability to have a 349 00:20:29,320 --> 00:20:30,680 Speaker 1: rocket docket essentially. 350 00:20:31,160 --> 00:20:34,159 Speaker 4: And they're also considering detaining more people. 351 00:20:34,680 --> 00:20:37,679 Speaker 1: The problem is they are one, you need additional congressional 352 00:20:37,720 --> 00:20:40,399 Speaker 1: funding to do it, which ICE is now saying they 353 00:20:40,400 --> 00:20:43,480 Speaker 1: actually can have lesson to be able to detain people. 354 00:20:43,520 --> 00:20:46,240 Speaker 1: And number two, you can't detain anyone where there's a 355 00:20:46,320 --> 00:20:50,240 Speaker 1: kid involved, so you couldn't detain families coming together, and 356 00:20:50,320 --> 00:20:54,119 Speaker 1: you can't detain children at all, and so you would 357 00:20:54,119 --> 00:20:57,480 Speaker 1: just be detaining single adults, which the government is already 358 00:20:57,520 --> 00:21:01,120 Speaker 1: doing at the capacity they're doing. The problem is many 359 00:21:01,160 --> 00:21:06,440 Speaker 1: many more people coming than the detention spaces that exists. 360 00:21:06,760 --> 00:21:10,000 Speaker 1: You know, maybe you can start using military bases and 361 00:21:10,080 --> 00:21:13,199 Speaker 1: other things of this nature and not what can be done, 362 00:21:13,320 --> 00:21:16,560 Speaker 1: but it's gonna need more funding to convince people you 363 00:21:16,640 --> 00:21:18,720 Speaker 1: really are serious about detaining people. 364 00:21:19,320 --> 00:21:23,440 Speaker 4: Does Biden have the resources for any of these plans 365 00:21:23,480 --> 00:21:25,680 Speaker 4: to be implemented, so. 366 00:21:25,760 --> 00:21:28,320 Speaker 1: For the ban, he certainly does. The the band doesn't 367 00:21:28,400 --> 00:21:31,399 Speaker 1: cost anything. The question is will the court uphold the 368 00:21:31,440 --> 00:21:37,920 Speaker 1: ban for the increased detention. He's gonna need additional funding 369 00:21:38,520 --> 00:21:42,159 Speaker 1: from Congress for things like, you know, food for the 370 00:21:42,200 --> 00:21:45,920 Speaker 1: people that are being detained, housing, transportations to move them 371 00:21:45,960 --> 00:21:49,479 Speaker 1: to these detention facilities, things of nature. So all of 372 00:21:49,480 --> 00:21:52,480 Speaker 1: that will be needed. The question is will Congress give 373 00:21:52,520 --> 00:21:55,440 Speaker 1: them that funding or what the Biden administration could do 374 00:21:55,600 --> 00:22:00,560 Speaker 1: theoretically is divert resources from other Department of Homeland Security 375 00:22:00,600 --> 00:22:03,800 Speaker 1: priorities to this. But the question is how much money 376 00:22:03,920 --> 00:22:06,439 Speaker 1: is they're really in the budget to divert to this 377 00:22:06,560 --> 00:22:09,120 Speaker 1: that's not being used for something useful. I mean, surely 378 00:22:09,400 --> 00:22:11,560 Speaker 1: there will be some programs you can divert to this, 379 00:22:12,040 --> 00:22:14,879 Speaker 1: but I don't know in terms of the billions that 380 00:22:14,920 --> 00:22:18,680 Speaker 1: will be needed that they're billions left diverts. So that's 381 00:22:18,720 --> 00:22:21,160 Speaker 1: why you would think the Congress would need to pass 382 00:22:21,200 --> 00:22:21,840 Speaker 1: the funds for that. 383 00:22:22,400 --> 00:22:25,919 Speaker 4: It sounds like all of these plans might have a 384 00:22:26,000 --> 00:22:28,520 Speaker 4: problem in the courts, correct. 385 00:22:28,160 --> 00:22:31,000 Speaker 1: And I think that's where the question ultimately comes down to. 386 00:22:31,720 --> 00:22:37,000 Speaker 1: Is the Biden administration proposing these changes to simply have 387 00:22:37,160 --> 00:22:40,280 Speaker 1: them lose because it knows that they will lose, but 388 00:22:40,280 --> 00:22:42,600 Speaker 1: at least they can say, look, we tried, and now 389 00:22:42,720 --> 00:22:46,359 Speaker 1: isn't it obvious that Congress needs sacked. That's one option 390 00:22:47,119 --> 00:22:51,280 Speaker 1: or option two. Aren't doing it to just say they 391 00:22:51,280 --> 00:22:53,040 Speaker 1: did something at the end of the day. I mean, 392 00:22:53,359 --> 00:22:57,080 Speaker 1: that's ultimately the question. It's not clear what the goal is. 393 00:22:57,119 --> 00:23:00,560 Speaker 1: But if the goal is that they thing that there's 394 00:23:00,560 --> 00:23:03,679 Speaker 1: something they can do at a moment that doesn't have 395 00:23:03,720 --> 00:23:08,760 Speaker 1: some Congressional assistance, that's going to completely stem the tide 396 00:23:08,800 --> 00:23:11,240 Speaker 1: of what's happening at the border. It's going to be very, 397 00:23:11,320 --> 00:23:14,480 Speaker 1: very difficult to accomplish because they're going to need at 398 00:23:14,560 --> 00:23:17,400 Speaker 1: least assistance from the court. Maybe they don't need assistance 399 00:23:17,440 --> 00:23:19,840 Speaker 1: from Congress, but they're going to at least need assistant 400 00:23:19,880 --> 00:23:22,000 Speaker 1: from the courts to do something that the courts have 401 00:23:22,119 --> 00:23:23,200 Speaker 1: never permitted before. 402 00:23:23,880 --> 00:23:27,399 Speaker 4: So a Bloomberg News Morning Console poll last month found 403 00:23:27,440 --> 00:23:31,320 Speaker 4: that six and ten swing state voters say Biden bears 404 00:23:31,320 --> 00:23:34,320 Speaker 4: at least some of the responsibility for a surgeon migrants. 405 00:23:34,520 --> 00:23:36,960 Speaker 4: The border and migrants are going to be a prominent 406 00:23:37,000 --> 00:23:40,240 Speaker 4: issue in the twenty twenty four elections, and you know, 407 00:23:40,240 --> 00:23:45,600 Speaker 4: we've seen Democratic mayors and governors and some lawmakers asking 408 00:23:45,640 --> 00:23:48,760 Speaker 4: Biden to do something about the migrant crisis. Do you 409 00:23:48,840 --> 00:23:53,720 Speaker 4: think that will outweigh what we expect maybe outrage from 410 00:23:54,000 --> 00:23:56,919 Speaker 4: you know, the far left and from immigration advocates. 411 00:23:57,359 --> 00:24:01,760 Speaker 1: I think it will pay during the spring how intense 412 00:24:01,880 --> 00:24:05,680 Speaker 1: the crossings are. If the crossings are at the three 413 00:24:05,800 --> 00:24:09,440 Speaker 1: million per year rates that we've been seeing very recently, 414 00:24:09,880 --> 00:24:12,000 Speaker 1: it's going to be very difficult the impact that this 415 00:24:12,119 --> 00:24:14,840 Speaker 1: is going to have on cities. And this is where 416 00:24:14,880 --> 00:24:18,000 Speaker 1: I think the Biden administration would at least do itself 417 00:24:18,320 --> 00:24:21,320 Speaker 1: some good in terms of trying to go to the 418 00:24:21,359 --> 00:24:23,720 Speaker 1: Congress and say, look, if we're going to do something, 419 00:24:24,040 --> 00:24:26,639 Speaker 1: we need to at least have detention. You need to 420 00:24:26,680 --> 00:24:30,240 Speaker 1: at least give us the money to do one specific 421 00:24:30,320 --> 00:24:34,840 Speaker 1: thing which has detained single adults who don't have anywhere 422 00:24:34,840 --> 00:24:37,440 Speaker 1: to go and are dependent on cities to house. That 423 00:24:37,680 --> 00:24:40,359 Speaker 1: probably needs stand as soon as possible. Now, do they 424 00:24:40,400 --> 00:24:42,960 Speaker 1: need more money to do that? Probably? I don't think 425 00:24:42,960 --> 00:24:45,159 Speaker 1: there's the money now in the budget to do this 426 00:24:45,320 --> 00:24:48,800 Speaker 1: on a massive scale. But I do think if Republicans 427 00:24:48,840 --> 00:24:51,560 Speaker 1: were to reject that, or if Democrats or whoever were 428 00:24:51,600 --> 00:24:54,160 Speaker 1: to reject that, then that would look like a very 429 00:24:54,200 --> 00:24:56,719 Speaker 1: bad faith effort. I mean, you could talk about all 430 00:24:56,760 --> 00:24:58,840 Speaker 1: these changes in the law that some people liked or 431 00:24:58,920 --> 00:25:01,960 Speaker 1: didn't like or whatever. But if the issue is just, hey, 432 00:25:02,400 --> 00:25:04,920 Speaker 1: what do you want us to do with people? If 433 00:25:04,960 --> 00:25:09,040 Speaker 1: it's not to detain them while their cases processing, you 434 00:25:09,160 --> 00:25:11,560 Speaker 1: tell us what you want us to do. And so 435 00:25:11,720 --> 00:25:13,639 Speaker 1: that's the case. Now you can say, well, what I 436 00:25:13,680 --> 00:25:16,679 Speaker 1: want you to do is do remain in Mexico. But 437 00:25:16,880 --> 00:25:20,720 Speaker 1: the problem is there that infrastructure, you know, to the 438 00:25:20,760 --> 00:25:23,120 Speaker 1: extent that people want to blame Joe Biden for something, 439 00:25:23,600 --> 00:25:27,240 Speaker 1: was torn down completely at the beginning of the Biden administration, 440 00:25:27,720 --> 00:25:31,480 Speaker 1: and then Mexico took legal measures to make it impossible 441 00:25:31,520 --> 00:25:34,960 Speaker 1: in Mexico for that to ever be done again, meaning 442 00:25:35,000 --> 00:25:38,920 Speaker 1: Mexico had acquiesced. Now there's Supreme Court decisions in Mexico 443 00:25:39,000 --> 00:25:42,679 Speaker 1: that prohibits this, and there's laws in Mexico that prohibits this. 444 00:25:43,080 --> 00:25:46,520 Speaker 1: And so what what needs to happen is that whole 445 00:25:46,600 --> 00:25:49,320 Speaker 1: process that started under the Trump administration we need to 446 00:25:49,359 --> 00:25:53,639 Speaker 1: be restarted where Mexico is threatened again. Hey, your days 447 00:25:53,640 --> 00:25:56,240 Speaker 1: of building cars in Mexico are over. We're going to 448 00:25:56,280 --> 00:25:58,880 Speaker 1: give it a fifty percent tire off if you don't 449 00:25:58,920 --> 00:26:01,960 Speaker 1: help us with remain in Mexico, and then Mexico would 450 00:26:01,960 --> 00:26:05,360 Speaker 1: have to change all its laws again and go back 451 00:26:05,400 --> 00:26:07,680 Speaker 1: to the Supreme Courn and figure out the way where 452 00:26:07,680 --> 00:26:10,480 Speaker 1: that would be allowed to be changed again and do 453 00:26:10,600 --> 00:26:13,080 Speaker 1: all of that. And the point is the Biden administration 454 00:26:13,240 --> 00:26:15,800 Speaker 1: needs a solution in a month. They don't need a 455 00:26:15,840 --> 00:26:19,520 Speaker 1: solution in six months or a year. So that's the 456 00:26:19,600 --> 00:26:23,240 Speaker 1: problem with sort of having taken down that infrastructure. If 457 00:26:23,280 --> 00:26:27,240 Speaker 1: that infrastructure cannot be built so quickly, three institute remain 458 00:26:27,320 --> 00:26:27,880 Speaker 1: in Mexico. 459 00:26:28,280 --> 00:26:31,320 Speaker 4: Okay, thanks so much, Leon. We'll see what Biden decides 460 00:26:31,359 --> 00:26:34,679 Speaker 4: to do if anything. That's Leon Fresco, a partner at 461 00:26:34,680 --> 00:26:37,680 Speaker 4: Holland and Knight. I'm June Gross. When you're listening to Bloomberg. 462 00:26:38,280 --> 00:26:41,160 Speaker 4: Some of the biggest names in corporate America have kicked 463 00:26:41,200 --> 00:26:44,800 Speaker 4: off the year with large layoffs. Companies announced plans to 464 00:26:44,840 --> 00:26:48,440 Speaker 4: cut eighty two thousand, three hundred and seven positions last month, 465 00:26:48,800 --> 00:26:51,919 Speaker 4: up one hundred and thirty six percent from December and 466 00:26:52,000 --> 00:26:55,280 Speaker 4: the second most of any in January since the aftermath 467 00:26:55,280 --> 00:26:59,600 Speaker 4: of the financial crisis. That's according to Challenger, Gray and Christmas. 468 00:26:59,760 --> 00:27:03,920 Speaker 4: So how should companies and executives prepare for large scale layoffs? 469 00:27:04,280 --> 00:27:08,360 Speaker 4: While following employment laws and avoiding litigation. Here to tell 470 00:27:08,440 --> 00:27:11,520 Speaker 4: us is Rebecca Bernhardt, a partner at Dorsey and Whitney. 471 00:27:11,840 --> 00:27:13,639 Speaker 4: Let's start with a big one tell us about the 472 00:27:13,680 --> 00:27:14,280 Speaker 4: WARN Act. 473 00:27:14,720 --> 00:27:18,520 Speaker 3: So the WARN Act, which actually stands for the Worker 474 00:27:18,560 --> 00:27:22,159 Speaker 3: Adjustment and Retraining Notification Act, believe it or not, is 475 00:27:22,280 --> 00:27:26,359 Speaker 3: basically a law on the federal level that applies to 476 00:27:27,280 --> 00:27:31,480 Speaker 3: employers with more than one hundred employees if they are 477 00:27:32,040 --> 00:27:34,879 Speaker 3: going to be doing what's called a mass layoff or 478 00:27:34,920 --> 00:27:37,679 Speaker 3: a plant closure. And then there's of course statutory and 479 00:27:37,720 --> 00:27:42,200 Speaker 3: regulatory definitions of what those terms means. But in a nutshell, 480 00:27:42,640 --> 00:27:45,240 Speaker 3: if you have more than one hundred employees and you're 481 00:27:45,240 --> 00:27:49,360 Speaker 3: going to lay off at least fifty in one single location, 482 00:27:49,800 --> 00:27:52,720 Speaker 3: then the WARN Act is triggered, which is you're giving 483 00:27:52,800 --> 00:27:55,840 Speaker 3: notice not just to the employees, although that's a huge 484 00:27:55,880 --> 00:27:57,960 Speaker 3: component and that's what most people think about it, but 485 00:27:58,000 --> 00:28:01,080 Speaker 3: you're also giving notice to a variety of guys government agencies. 486 00:28:01,480 --> 00:28:05,359 Speaker 3: The original philosophy there was that those government agencies would 487 00:28:05,440 --> 00:28:08,880 Speaker 3: rally and get the unemployment people on standby, and get 488 00:28:08,880 --> 00:28:12,320 Speaker 3: any workforce training resources that they have on standby and 489 00:28:12,359 --> 00:28:14,600 Speaker 3: that kind of thing. So once that applies. It means 490 00:28:14,600 --> 00:28:17,679 Speaker 3: you have to give sixty days advance notice both to 491 00:28:17,720 --> 00:28:20,840 Speaker 3: the group of employees who are affected their union and 492 00:28:21,080 --> 00:28:24,840 Speaker 3: to this variety of state authorities, starting with like the 493 00:28:24,960 --> 00:28:28,399 Speaker 3: mayor of the local community and then the Department of 494 00:28:28,440 --> 00:28:31,080 Speaker 3: Labor is representative in that area that kind of thing. 495 00:28:31,200 --> 00:28:33,920 Speaker 6: Do the government officials that you have to give notice 496 00:28:33,960 --> 00:28:36,040 Speaker 6: to are they able to do anything? 497 00:28:36,880 --> 00:28:40,160 Speaker 3: In theory, they don't do anything other than rally their 498 00:28:40,160 --> 00:28:44,640 Speaker 3: own resources. They don't actually engage with the employer to 499 00:28:44,680 --> 00:28:49,320 Speaker 3: negotiate over who's being laid off or what's being done 500 00:28:49,400 --> 00:28:52,600 Speaker 3: with for example, severance packages or anything like that. The 501 00:28:52,640 --> 00:28:55,960 Speaker 3: reason I mentioned that is because there are a couple 502 00:28:56,040 --> 00:28:59,040 Speaker 3: exceptions to the Warnan Act in terms of when you 503 00:28:59,160 --> 00:29:01,800 Speaker 3: can give notice, and a lot of companies like to 504 00:29:01,880 --> 00:29:04,640 Speaker 3: rely on these exceptions. But I say it's, you know, 505 00:29:04,800 --> 00:29:09,120 Speaker 3: you should be cautious because the unforeseen circumstances or the 506 00:29:09,120 --> 00:29:14,480 Speaker 3: faltering business exceptions, and the unforeseen circumstances was a big 507 00:29:14,480 --> 00:29:17,560 Speaker 3: one during the pandemic. Of course, they still require you 508 00:29:17,600 --> 00:29:19,760 Speaker 3: to give notice, and they definitely require you to give 509 00:29:19,760 --> 00:29:21,720 Speaker 3: notice to government. It's just that you might not have 510 00:29:21,760 --> 00:29:23,680 Speaker 3: to give sixty day notice. You have to give notice 511 00:29:23,720 --> 00:29:26,680 Speaker 3: as soon as possible, and so a lot of employers 512 00:29:27,120 --> 00:29:29,440 Speaker 3: will say, oh, we're a fultering company, or they were 513 00:29:29,520 --> 00:29:32,640 Speaker 3: unforeseen circumstances, and so they'll lay the people off that 514 00:29:32,720 --> 00:29:35,560 Speaker 3: same day with no notice, and then they forget to 515 00:29:35,600 --> 00:29:38,960 Speaker 3: give the government their notice because they think we're not 516 00:29:39,680 --> 00:29:43,320 Speaker 3: following them one Act sixty day notes requirement, and then 517 00:29:43,320 --> 00:29:46,320 Speaker 3: they're in trouble with the government for not issuing those 518 00:29:46,360 --> 00:29:48,880 Speaker 3: government notices, and that involves fine. 519 00:29:49,120 --> 00:29:53,240 Speaker 6: I mean, often you hear about layoffs. You know, they're 520 00:29:53,320 --> 00:29:55,440 Speaker 6: laying off this many people, and they're laying them off 521 00:29:55,520 --> 00:29:58,640 Speaker 6: right then they don't give you know, two months notice 522 00:29:58,800 --> 00:30:02,080 Speaker 6: to the employee. Is that they're looking at an exception? 523 00:30:03,640 --> 00:30:07,000 Speaker 3: It could be, and it certainly was fairly common in 524 00:30:07,120 --> 00:30:09,840 Speaker 3: again in the pandemic. Now, I mean, I obviously can't 525 00:30:09,840 --> 00:30:12,960 Speaker 3: speak to every individual circumstance, and it's possible that they're 526 00:30:12,960 --> 00:30:15,360 Speaker 3: looking exceptions, but a lot of companies do what I 527 00:30:15,480 --> 00:30:18,600 Speaker 3: call pre pay the penalty. So if you fail on 528 00:30:18,640 --> 00:30:22,400 Speaker 3: the employees side, the penalty or the remedy, if you will, 529 00:30:23,400 --> 00:30:27,680 Speaker 3: would be that the employee is entitled to basically their 530 00:30:27,720 --> 00:30:31,040 Speaker 3: salary and continued benefits for the period in which the 531 00:30:31,080 --> 00:30:34,560 Speaker 3: note was deficient. So in your example, if I'm told 532 00:30:34,600 --> 00:30:37,320 Speaker 3: today that I'm being laid off, i didn't get my 533 00:30:37,360 --> 00:30:40,440 Speaker 3: sixties day notice, so I'm entitled to sixty days of 534 00:30:40,520 --> 00:30:44,280 Speaker 3: pay and benefits. And so a lot of times employers 535 00:30:44,320 --> 00:30:47,680 Speaker 3: will say, sorry, Rebecca, we're laying you off today. Here's 536 00:30:47,720 --> 00:30:50,640 Speaker 3: a severance package that includes at least sixty days notice 537 00:30:50,640 --> 00:30:53,720 Speaker 3: and at least sixty days of all your continued benefits. 538 00:30:53,960 --> 00:30:57,520 Speaker 3: Sign this release, and they're hoping basically that that will 539 00:30:57,680 --> 00:31:01,160 Speaker 3: satisfy their obligations. As a relief to the individual employees. 540 00:31:01,280 --> 00:31:03,080 Speaker 3: They don't want to give the notice, so they just 541 00:31:03,400 --> 00:31:07,400 Speaker 3: essentially prepay the damages of the potential litigation if it ensues. 542 00:31:07,840 --> 00:31:12,080 Speaker 6: What happens if you have union members in your workforce? 543 00:31:12,360 --> 00:31:13,560 Speaker 6: What should employers do? 544 00:31:14,040 --> 00:31:15,959 Speaker 3: Well, this is a great question because the first thing 545 00:31:15,960 --> 00:31:18,160 Speaker 3: you should do is pull out your collective bargaining agreement, 546 00:31:18,400 --> 00:31:21,640 Speaker 3: your contract with the union, because there might be language 547 00:31:21,640 --> 00:31:23,320 Speaker 3: in there, and you don't want to be in a 548 00:31:23,440 --> 00:31:26,160 Speaker 3: position of not following what you've already agreed upon with 549 00:31:26,240 --> 00:31:28,920 Speaker 3: the union, which you could have agreed upon decades ago. Right, 550 00:31:29,240 --> 00:31:32,800 Speaker 3: a lot of union relationships are decades old and current 551 00:31:32,800 --> 00:31:36,080 Speaker 3: managers don't remember all of the well i'll call boiler 552 00:31:36,120 --> 00:31:38,240 Speaker 3: plate that's in a collective barning agreement because they never 553 00:31:38,320 --> 00:31:41,640 Speaker 3: have to use it. Right, But generally speaking, if there's 554 00:31:41,760 --> 00:31:44,040 Speaker 3: language in the collective barging agreement that says you have 555 00:31:44,120 --> 00:31:48,000 Speaker 3: to bargain with the union before you implement layoffs, then 556 00:31:48,000 --> 00:31:48,920 Speaker 3: that's what you have to do. 557 00:31:49,160 --> 00:31:49,320 Speaker 1: Right. 558 00:31:49,320 --> 00:31:50,640 Speaker 3: You have to sit down. You have to say we're 559 00:31:50,680 --> 00:31:53,720 Speaker 3: in trouble, we need to reduce our workforce, and we're 560 00:31:53,720 --> 00:31:55,600 Speaker 3: here to talk to you about what your ideas are 561 00:31:55,640 --> 00:31:59,400 Speaker 3: for that. Right, most general labor law says that unless 562 00:31:59,400 --> 00:32:01,320 Speaker 3: there is the scifick language like that, you don't have 563 00:32:01,360 --> 00:32:03,920 Speaker 3: to bargain with the union what i'll call in advance 564 00:32:04,120 --> 00:32:07,600 Speaker 3: over the decision. But you do have to bargain over 565 00:32:07,680 --> 00:32:10,720 Speaker 3: what's called the effects, and that's called effects bargaining. And 566 00:32:10,800 --> 00:32:12,560 Speaker 3: so you have to say to the union, we are 567 00:32:12,600 --> 00:32:14,520 Speaker 3: going to lay people off. We're going to lay you know, 568 00:32:14,560 --> 00:32:17,440 Speaker 3: one hundred people off from these two plants, and we're 569 00:32:17,480 --> 00:32:20,080 Speaker 3: here to bargain with you over you know, the effects 570 00:32:20,080 --> 00:32:23,600 Speaker 3: of that layoff. And generally speaking, that's you know, as 571 00:32:23,600 --> 00:32:27,440 Speaker 3: you would expect severance, But sometimes unions want contributions depend 572 00:32:27,600 --> 00:32:30,880 Speaker 3: funds over money, and sometimes they might want retraining money, 573 00:32:31,160 --> 00:32:33,720 Speaker 3: you know, to help their employees get jobs somewhere else. 574 00:32:33,960 --> 00:32:35,720 Speaker 3: So you know, that's the theory. They have the right 575 00:32:35,760 --> 00:32:38,239 Speaker 3: to sort of decide what kind of sefarence they want. Now, 576 00:32:38,240 --> 00:32:42,719 Speaker 3: it's possible that the contract itself already contains some severance language. 577 00:32:42,880 --> 00:32:47,240 Speaker 3: It's usually contains seniority clauses, which give you some guide 578 00:32:47,240 --> 00:32:49,320 Speaker 3: of if you are laying people off, here's the order 579 00:32:49,360 --> 00:32:51,360 Speaker 3: in which you have to do it. Those kinds of 580 00:32:51,360 --> 00:32:53,200 Speaker 3: things have to be followed, or else you're going to 581 00:32:53,200 --> 00:32:56,160 Speaker 3: get in trouble with kind of union mitigation. So you 582 00:32:56,160 --> 00:32:58,440 Speaker 3: want to follow anything that's already in the contract, and 583 00:32:58,440 --> 00:33:00,960 Speaker 3: then you want to sit down and bargain or anything 584 00:33:01,000 --> 00:33:03,720 Speaker 3: that hasn't been decided about the layoff process. 585 00:33:03,880 --> 00:33:06,760 Speaker 6: If there is no language in the contract in the 586 00:33:06,880 --> 00:33:11,680 Speaker 6: union contract, do unions have any power to stop a layoff. 587 00:33:12,320 --> 00:33:16,280 Speaker 3: So, of course the current and LRB is very employee friendly, 588 00:33:17,000 --> 00:33:20,920 Speaker 3: and so you know, it is unclear how cases might 589 00:33:20,960 --> 00:33:26,400 Speaker 3: have evolved, but in general, the case law that's kind 590 00:33:26,400 --> 00:33:29,520 Speaker 3: of Supreme Court made that has bubbled up and it's 591 00:33:30,040 --> 00:33:33,000 Speaker 3: pretty old. It's you know, cases from the seventies and eighties. 592 00:33:33,920 --> 00:33:36,240 Speaker 3: It says basically what I just said, which is you 593 00:33:36,240 --> 00:33:38,920 Speaker 3: don't get to you don't get to bargain over the 594 00:33:38,960 --> 00:33:42,200 Speaker 3: decision of whether or author's playoffs. But that doesn't mean 595 00:33:42,200 --> 00:33:44,640 Speaker 3: that a union can't try. Right, a union could say, 596 00:33:44,760 --> 00:33:46,840 Speaker 3: we understand you want to do layoffs, we'd like to 597 00:33:46,880 --> 00:33:50,720 Speaker 3: talk to you because we have an alternative suggestion. We'd 598 00:33:50,800 --> 00:33:53,880 Speaker 3: rather go to part time schedules, or we'd rather, you know, 599 00:33:54,080 --> 00:33:56,800 Speaker 3: move some work from point A to point B. They 600 00:33:56,840 --> 00:34:01,960 Speaker 3: are certainly free to request negotiation. They of course have 601 00:34:02,080 --> 00:34:03,920 Speaker 3: all of the economic tools that they would have in 602 00:34:03,960 --> 00:34:07,840 Speaker 3: any bargaining situation, which, as we understand them, are strikes. 603 00:34:08,520 --> 00:34:10,239 Speaker 3: Of course, that would be ironic to go on a 604 00:34:10,280 --> 00:34:13,520 Speaker 3: strike regarding a layoff, but that is, you know, the 605 00:34:14,680 --> 00:34:17,719 Speaker 3: biggest weapon that a union has is to sort of 606 00:34:17,719 --> 00:34:21,600 Speaker 3: put that economic pressure. I think that the Uniana workers 607 00:34:21,840 --> 00:34:25,279 Speaker 3: what I'll call rolling job actions that happened, you know, 608 00:34:25,320 --> 00:34:29,120 Speaker 3: a couple of months ago. Those were an interesting creative strategy, 609 00:34:29,160 --> 00:34:30,719 Speaker 3: and you can see how that would work in a 610 00:34:30,840 --> 00:34:34,919 Speaker 3: layoff pressure campaign. Right, if I want to lay off, 611 00:34:35,160 --> 00:34:37,200 Speaker 3: if I want to you know, close my plants and 612 00:34:37,680 --> 00:34:42,120 Speaker 3: you know, Detroit, Michigan, my workers in you know, Mary 613 00:34:42,120 --> 00:34:44,719 Speaker 3: in Indiana might say, oh, well we're going to we're 614 00:34:44,719 --> 00:34:46,440 Speaker 3: going to strike, and it's like, no, no, no, I like 615 00:34:46,520 --> 00:34:48,920 Speaker 3: that plan. I want that plan to be operational, right, 616 00:34:48,960 --> 00:34:51,480 Speaker 3: and that and that might put pressure on me as 617 00:34:51,480 --> 00:34:54,200 Speaker 3: the employer to sit down with the union to figure 618 00:34:54,200 --> 00:34:55,400 Speaker 3: out what we're going to do about Detroit. 619 00:34:55,880 --> 00:35:00,720 Speaker 6: So now there's always a question of, you know Title 620 00:35:00,840 --> 00:35:04,960 Speaker 6: seven antidiscrimination laws, what are the concerns that employers have 621 00:35:05,040 --> 00:35:05,920 Speaker 6: to think about there? 622 00:35:06,760 --> 00:35:09,560 Speaker 3: That is the biggest kind of area I think employer 623 00:35:09,760 --> 00:35:12,960 Speaker 3: side and employment lawyers are kind of engaged to deal with. 624 00:35:13,200 --> 00:35:14,760 Speaker 3: It's the selection who. 625 00:35:15,040 --> 00:35:15,200 Speaker 1: Right. 626 00:35:15,239 --> 00:35:17,520 Speaker 3: In the union context, we've got what I said already, 627 00:35:17,560 --> 00:35:19,920 Speaker 3: we've got this kind of seniority concept that helps you 628 00:35:20,000 --> 00:35:23,600 Speaker 3: select and that kind of insulates employer in that world. 629 00:35:23,640 --> 00:35:26,000 Speaker 3: But in the non union environment, it's really up to 630 00:35:26,040 --> 00:35:29,280 Speaker 3: the employer to decide who I'm picking, right, and human 631 00:35:29,360 --> 00:35:31,759 Speaker 3: nature is going to be such that I want to 632 00:35:31,760 --> 00:35:34,000 Speaker 3: pick the people I think are the worst performers, or 633 00:35:34,000 --> 00:35:35,719 Speaker 3: I want to pick the people that I don't like. 634 00:35:36,480 --> 00:35:40,200 Speaker 3: I'm a human being, I have emotions, and so of 635 00:35:40,239 --> 00:35:44,279 Speaker 3: course anytime you're making those kinds of decisions, you want 636 00:35:44,280 --> 00:35:47,879 Speaker 3: to make sure that you can defend those on objective 637 00:35:48,080 --> 00:35:52,680 Speaker 3: criteria and not subjective criteria, because subjective criteria would make 638 00:35:52,719 --> 00:35:57,000 Speaker 3: it easier for the affected employees to proceed with discrimination suits. 639 00:35:57,160 --> 00:35:59,560 Speaker 3: You know, you might say that you pick the people 640 00:35:59,600 --> 00:36:02,560 Speaker 3: with the lost review scores, but it just happens that 641 00:36:02,600 --> 00:36:05,080 Speaker 3: you picked all of the you know, the people of color, 642 00:36:05,280 --> 00:36:09,000 Speaker 3: and we think that you know, your statement that it 643 00:36:09,160 --> 00:36:12,279 Speaker 3: was the lowest performance scores is actually pretext and you 644 00:36:12,320 --> 00:36:14,000 Speaker 3: were just trying to get rid of the people of 645 00:36:14,040 --> 00:36:18,120 Speaker 3: color in the plant. And so the selection of who 646 00:36:18,160 --> 00:36:22,160 Speaker 3: gets picked for the layoffs would trigger any of the 647 00:36:22,160 --> 00:36:26,680 Speaker 3: protective statuses under the state or federal laws Title seven 648 00:36:26,719 --> 00:36:29,759 Speaker 3: as you noted, but the Age Discrimination Act, and then 649 00:36:29,880 --> 00:36:33,200 Speaker 3: any local laws that mirror those, and then of course 650 00:36:33,200 --> 00:36:35,960 Speaker 3: disability to so layoffs. 651 00:36:36,040 --> 00:36:39,280 Speaker 6: I've seen people laid off and then they get something 652 00:36:39,800 --> 00:36:42,279 Speaker 6: from the company. Here's who we laid off. So we 653 00:36:42,360 --> 00:36:46,759 Speaker 6: laid off twenty people above the age of fifty, and 654 00:36:46,800 --> 00:36:50,560 Speaker 6: then we kept twenty people above the age of fifty. 655 00:36:51,040 --> 00:36:54,279 Speaker 6: I mean, do they try to balance it out that way? 656 00:36:54,360 --> 00:36:58,120 Speaker 3: So that is an obligation to provide what that's called 657 00:36:58,120 --> 00:37:02,160 Speaker 3: a disclosure statement under the relations for the Age Discrimination 658 00:37:02,280 --> 00:37:05,920 Speaker 3: Acts amendment of the Older Workers Benefit Protection Act. So 659 00:37:06,120 --> 00:37:09,200 Speaker 3: the Older Worker Benefit Protection Act amended the Age Discrimination 660 00:37:09,280 --> 00:37:11,479 Speaker 3: Act and said, if you're going to lay people off 661 00:37:11,680 --> 00:37:14,000 Speaker 3: and you're going to give them a release of claims 662 00:37:14,000 --> 00:37:17,719 Speaker 3: to sign in connection with the seference package and it's 663 00:37:17,719 --> 00:37:20,359 Speaker 3: a group, you know, termination, you need to give them 664 00:37:20,400 --> 00:37:24,320 Speaker 3: information about everybody who was laid off and their ages. 665 00:37:24,640 --> 00:37:26,080 Speaker 3: You can do it by job title. You're not going 666 00:37:26,160 --> 00:37:29,400 Speaker 3: to do it by name. And that way those older 667 00:37:29,440 --> 00:37:31,760 Speaker 3: people can take it to a journey if they wish, 668 00:37:32,040 --> 00:37:35,000 Speaker 3: and there's an easy way to visually say are they 669 00:37:35,000 --> 00:37:37,719 Speaker 3: really picking on all the old people? And if you 670 00:37:37,760 --> 00:37:40,600 Speaker 3: know your history just came out of the movement in 671 00:37:40,640 --> 00:37:42,879 Speaker 3: the eighties, which of course is where the Warnact came 672 00:37:42,880 --> 00:37:45,760 Speaker 3: out of too. There was a lot of plant closures 673 00:37:45,760 --> 00:37:48,600 Speaker 3: in the eighties and a lot of companies just picked 674 00:37:48,640 --> 00:37:50,719 Speaker 3: all the older workers because they were the more expensive. 675 00:37:50,880 --> 00:37:53,359 Speaker 3: It saved the money on their pensions, and all these 676 00:37:53,360 --> 00:37:55,360 Speaker 3: folks got laid off and then they didn't realize they 677 00:37:55,400 --> 00:37:58,600 Speaker 3: were losing their pensions in the process. So the WARN 678 00:37:58,640 --> 00:38:00,719 Speaker 3: Act came up to sort of help on that end, 679 00:38:00,760 --> 00:38:03,440 Speaker 3: and then the Older Worker Benefit Protection Act was kind 680 00:38:03,440 --> 00:38:06,560 Speaker 3: of a sort of individual right roomy neal amendments to 681 00:38:06,600 --> 00:38:09,719 Speaker 3: help people get more information about who's being selected and 682 00:38:09,719 --> 00:38:12,880 Speaker 3: who's not to decide is there really an age discrimination? 683 00:38:13,400 --> 00:38:17,120 Speaker 3: So interestingly enough, you had mentioned Title seven before that 684 00:38:17,160 --> 00:38:19,719 Speaker 3: doesn't require that same kind of disclosure on whether it's 685 00:38:19,760 --> 00:38:25,120 Speaker 3: men versus women, or Lutherans versus Catholics, so you know, 686 00:38:25,239 --> 00:38:27,840 Speaker 3: or all the other protective statuses, you know, white versus 687 00:38:27,920 --> 00:38:32,600 Speaker 3: non white, and so employers do, I think, try to 688 00:38:32,600 --> 00:38:35,960 Speaker 3: do that assessment and that analysis across the board, but 689 00:38:36,000 --> 00:38:39,520 Speaker 3: they only have to actually share those numbers with the 690 00:38:39,600 --> 00:38:43,359 Speaker 3: affected employees visa the age, and I do think they 691 00:38:43,400 --> 00:38:45,880 Speaker 3: try to balance it out. If employers bringing lawyers like 692 00:38:45,920 --> 00:38:48,120 Speaker 3: me into the mix, and we look at that statement 693 00:38:48,239 --> 00:38:51,600 Speaker 3: before it gets you know, finalized, we think, geez, it 694 00:38:51,760 --> 00:38:54,200 Speaker 3: looks like you've got sixty people being laid off and 695 00:38:54,480 --> 00:38:57,120 Speaker 3: fifty five of them are old, Right, how are you 696 00:38:57,160 --> 00:38:58,000 Speaker 3: picking your people? 697 00:38:58,239 --> 00:38:58,399 Speaker 1: Right? 698 00:38:58,440 --> 00:39:01,640 Speaker 3: That looks pretty permisitious, And we would work on sort 699 00:39:01,640 --> 00:39:04,160 Speaker 3: of the selection criteria and say, you know, are you 700 00:39:04,239 --> 00:39:06,200 Speaker 3: sure that these are the right sixty people? 701 00:39:06,920 --> 00:39:11,879 Speaker 6: Are there any general rules you would give employers when 702 00:39:11,920 --> 00:39:13,759 Speaker 6: they're thinking about layoffs? 703 00:39:14,560 --> 00:39:17,920 Speaker 3: Yeah, I think that all of these different anti excrimination 704 00:39:18,040 --> 00:39:22,480 Speaker 3: laws and warning requirements are counterintuitive to the way people 705 00:39:22,960 --> 00:39:25,960 Speaker 3: tend to make their actual business decisions. And so I've 706 00:39:26,040 --> 00:39:29,840 Speaker 3: just encourage people to try to slow down and contact council, 707 00:39:30,400 --> 00:39:32,920 Speaker 3: either in house counsel if you got it, or external 708 00:39:32,960 --> 00:39:37,040 Speaker 3: employment council, just to help reframe the decision making. You know, 709 00:39:37,080 --> 00:39:39,920 Speaker 3: no one wants to question your business. No lawyer, no 710 00:39:39,960 --> 00:39:43,520 Speaker 3: good lawyers should question your legitimate business needs to take 711 00:39:43,560 --> 00:39:46,920 Speaker 3: the steps you need to take. But by slowing down 712 00:39:47,080 --> 00:39:49,759 Speaker 3: and sort of helping think about what does the law 713 00:39:49,920 --> 00:39:52,680 Speaker 3: say you have to think about, I think you can 714 00:39:52,719 --> 00:39:54,839 Speaker 3: still make the business decisions you need, but you can 715 00:39:54,920 --> 00:39:57,600 Speaker 3: sort of be aware of the legal framework that might 716 00:39:57,840 --> 00:40:00,840 Speaker 3: constrain some of those business decisions or require you to 717 00:40:00,880 --> 00:40:04,239 Speaker 3: think about, you know, a selection criteria. It's more objective, 718 00:40:04,239 --> 00:40:07,719 Speaker 3: for example, and the after effects and costs. Right, if 719 00:40:07,760 --> 00:40:10,080 Speaker 3: we don't give notice, what are the caught risks of 720 00:40:10,280 --> 00:40:13,279 Speaker 3: being sued for notice pay in the first place? And 721 00:40:13,320 --> 00:40:16,239 Speaker 3: so is it actually cheaper to give that notice and 722 00:40:16,320 --> 00:40:19,399 Speaker 3: let those people work? You know, that kind of thing A. 723 00:40:19,400 --> 00:40:21,920 Speaker 4: Love for employers to think about. Thanks so much, Rebecca. 724 00:40:22,120 --> 00:40:25,200 Speaker 4: That's Rebecca Bernhardt of Dorsey and Whitney and that's it 725 00:40:25,239 --> 00:40:28,200 Speaker 4: for this edition of the Bloomberg Law Podcast. Remember you 726 00:40:28,239 --> 00:40:31,000 Speaker 4: can always get the latest legal news by subscribing and 727 00:40:31,040 --> 00:40:34,520 Speaker 4: listening to the show on Apple Podcasts, Spotify, and at 728 00:40:34,560 --> 00:40:38,880 Speaker 4: Bloomberg dot com, slash podcast, slash Law. I'm June Grosso, 729 00:40:39,120 --> 00:40:40,600 Speaker 4: and this is Bloomberg