1
00:00:03,240 --> 00:00:09,760
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. Hi,

2
00:00:10,200 --> 00:00:12,000
Speaker 1: I'm a new customer and I want your best new

3
00:00:12,039 --> 00:00:14,800
Speaker 1: smartphone deal. Well, I'm an existing customer and i'd like

4
00:00:14,840 --> 00:00:21,160
Speaker 1: your best new smartphone deal. Actually, it's for both new

5
00:00:21,200 --> 00:00:25,079
Speaker 1: and existing customers. It's not complicated. Only a T gives

6
00:00:25,120 --> 00:00:27,520
Speaker 1: everyone the same great deal. A T and T is

7
00:00:27,520 --> 00:00:30,600
Speaker 1: appealing to consumers who feel cheated when they have to

8
00:00:30,640 --> 00:00:33,840
Speaker 1: pay more than the promotional rate that new customers get,

9
00:00:34,280 --> 00:00:36,519
Speaker 1: or feel frustrated that they have to get on the

10
00:00:36,560 --> 00:00:39,959
Speaker 1: phone and negotiate for the lower rate. Well, one man

11
00:00:40,040 --> 00:00:44,320
Speaker 1: in California decided to take his frustrations with Serious XMS

12
00:00:44,400 --> 00:00:48,080
Speaker 1: price disparities to court. Joseph and Enriquez has been a

13
00:00:48,120 --> 00:00:52,080
Speaker 1: serious subscriber since two thousand five and obtain promotional rates

14
00:00:52,080 --> 00:00:55,400
Speaker 1: throughout the years, but he had to threaten cancelation last

15
00:00:55,480 --> 00:00:59,080
Speaker 1: year before a Serious Customer service agent finally agreed to

16
00:00:59,080 --> 00:01:02,440
Speaker 1: give him the promotional rate. So Enriquez got the lower rate,

17
00:01:02,680 --> 00:01:06,399
Speaker 1: but still sued Serious x M alleging it offers secret

18
00:01:06,440 --> 00:01:10,280
Speaker 1: discounts to some customers. Does he have a case here

19
00:01:10,319 --> 00:01:12,480
Speaker 1: to tell us? As Jim Gibson, a professor at the

20
00:01:12,560 --> 00:01:15,880
Speaker 1: University of Richmond Law School, Jim, are all the causes

21
00:01:15,920 --> 00:01:19,720
Speaker 1: of action in this lawsuit under California law? Yes, it's

22
00:01:19,760 --> 00:01:23,119
Speaker 1: all California law. It's essentially California's version of what every

23
00:01:23,160 --> 00:01:25,640
Speaker 1: state has and what the federal law has as well,

24
00:01:25,640 --> 00:01:29,800
Speaker 1: which is essentially unfair trade practices, includes things like false advertising,

25
00:01:30,120 --> 00:01:33,520
Speaker 1: bate and switch. Occasionally some sort of antitrust causes of

26
00:01:33,560 --> 00:01:37,400
Speaker 1: action as well. So this is a common strategy used

27
00:01:37,440 --> 00:01:42,520
Speaker 1: by cable companies mobile phone companies. I just negotiated a

28
00:01:42,560 --> 00:01:46,280
Speaker 1: new deal with Spectrum myself because my old rate expired.

29
00:01:46,800 --> 00:01:50,400
Speaker 1: So what's likely to happen here? I think it's unlikely

30
00:01:50,440 --> 00:01:53,520
Speaker 1: that Enriquez is going to win. As you said, this

31
00:01:53,680 --> 00:01:56,160
Speaker 1: sort of differential pricing is probably more the rule than

32
00:01:56,160 --> 00:01:58,160
Speaker 1: the exception, at least among businesses that you have a

33
00:01:58,160 --> 00:02:00,560
Speaker 1: long term relationship with, like your mobile phone provider or

34
00:02:00,560 --> 00:02:04,120
Speaker 1: your cable provider or streaming service. And the notion that

35
00:02:04,240 --> 00:02:06,760
Speaker 1: existing customers don't get the same deal or have to

36
00:02:06,800 --> 00:02:09,280
Speaker 1: work harder to get the same deal, I don't think

37
00:02:09,320 --> 00:02:10,880
Speaker 1: has ever been held by a court to be an

38
00:02:10,919 --> 00:02:14,160
Speaker 1: unfair business practice. The only sort of novel claim I

39
00:02:14,200 --> 00:02:16,920
Speaker 1: think he's making, although ultimately I don't think it works either.

40
00:02:17,120 --> 00:02:19,240
Speaker 1: Is that this is actually anti competitive. It's not just

41
00:02:19,280 --> 00:02:22,239
Speaker 1: bad for individual consumers, but it's it's essentially an antitrust

42
00:02:22,280 --> 00:02:26,560
Speaker 1: matter because competitors don't really know what serious expense prices are,

43
00:02:27,040 --> 00:02:29,280
Speaker 1: and therefore it's harder to compete with them. But I'm

44
00:02:29,280 --> 00:02:31,320
Speaker 1: not aware of any antitrust case either at the state

45
00:02:31,360 --> 00:02:34,240
Speaker 1: or federal level that sort of says that businesses have

46
00:02:34,320 --> 00:02:37,280
Speaker 1: to disclose. There are pricing regimes in order for competition

47
00:02:37,320 --> 00:02:40,359
Speaker 1: to work the way it should, and surely serious competitors

48
00:02:40,360 --> 00:02:42,640
Speaker 1: know that serious extim is doing this, and they themselves

49
00:02:42,680 --> 00:02:45,400
Speaker 1: are probably doing it as well. So companies don't have

50
00:02:45,440 --> 00:02:50,639
Speaker 1: to disclose their prices anywhere, No, except in certain very

51
00:02:50,720 --> 00:02:53,480
Speaker 1: narrow regulated industries. For the most part, you don't really

52
00:02:53,480 --> 00:02:56,360
Speaker 1: have to tell anybody what price you're selling something for,

53
00:02:56,600 --> 00:02:58,000
Speaker 1: and you can make them call you an ask or

54
00:02:58,000 --> 00:03:00,880
Speaker 1: call you an individually negotiate. Now, obviously it's often in

55
00:03:00,919 --> 00:03:03,160
Speaker 1: a business's interest to advertise your prices, right, because that's

56
00:03:03,160 --> 00:03:05,600
Speaker 1: how you attract customers. But that's more sort of the

57
00:03:05,840 --> 00:03:09,600
Speaker 1: market mechanisms working rather than legal mechanism demanding that businesses

58
00:03:09,639 --> 00:03:12,720
Speaker 1: do so, and in fact, businesses have been price discriminating

59
00:03:12,800 --> 00:03:16,040
Speaker 1: and giving differential pricing to customers in any number of

60
00:03:16,040 --> 00:03:19,000
Speaker 1: interesting ways for as long as we've had businesses. Have

61
00:03:19,080 --> 00:03:21,880
Speaker 1: you ever seen a lawsuit like this? Yeah, that's a

62
00:03:21,880 --> 00:03:25,639
Speaker 1: good question. I really haven't. Price discrimination, and that's sort

63
00:03:25,639 --> 00:03:28,560
Speaker 1: of the term economists used for this is actually often

64
00:03:28,600 --> 00:03:31,560
Speaker 1: considered to be a good thing in certain respects. And

65
00:03:31,639 --> 00:03:33,440
Speaker 1: keep in mind, when I say discrimination, I'm not using

66
00:03:33,440 --> 00:03:35,320
Speaker 1: discrimination in the way that we usually do when we're

67
00:03:35,320 --> 00:03:36,720
Speaker 1: talking about the law. We're not talking about sort of

68
00:03:36,760 --> 00:03:40,240
Speaker 1: race discrimination or sex discrimination. We're talking about essentially figuring

69
00:03:40,240 --> 00:03:43,000
Speaker 1: out how much a given customer might be willing to

70
00:03:43,040 --> 00:03:46,720
Speaker 1: pay In charging that customer a different price from another customer.

71
00:03:47,120 --> 00:03:49,720
Speaker 1: It's really considered in the world of economics than really

72
00:03:49,760 --> 00:03:52,120
Speaker 1: in the world of legal regulation of the marketplace, to

73
00:03:52,160 --> 00:03:54,880
Speaker 1: be almost a feature rather than a bug of the

74
00:03:55,120 --> 00:03:58,160
Speaker 1: you know, sort of market system. Yes, the idea is that, look,

75
00:03:58,360 --> 00:04:01,400
Speaker 1: as long as ultimately the customer is willing to pay

76
00:04:01,400 --> 00:04:04,120
Speaker 1: the price, then the fact that another customer is willing

77
00:04:04,120 --> 00:04:06,040
Speaker 1: only to pay a lower price shouldn't really affect the

78
00:04:06,040 --> 00:04:08,640
Speaker 1: first customer's decision. The idea is we can always vote

79
00:04:08,640 --> 00:04:10,960
Speaker 1: with our feet. No one has to subscribe to serious

80
00:04:11,080 --> 00:04:12,720
Speaker 1: x M, and so if they're asking a price that's

81
00:04:12,720 --> 00:04:14,640
Speaker 1: too high, you can take your business elsewhere or not

82
00:04:14,680 --> 00:04:17,360
Speaker 1: subscribe to that sort of digital radio service at all.

83
00:04:17,760 --> 00:04:19,400
Speaker 1: Don't get me wrong, there are ways in which the

84
00:04:19,440 --> 00:04:21,760
Speaker 1: system doesn't work well within the marketplace, but the basic

85
00:04:21,839 --> 00:04:25,880
Speaker 1: notion of charging different customers different prices is one that

86
00:04:26,000 --> 00:04:27,719
Speaker 1: business spent a lot of time figuring out how to

87
00:04:27,720 --> 00:04:30,640
Speaker 1: do correctly, rather than avoiding for fear of legal liability.

88
00:04:31,279 --> 00:04:33,800
Speaker 1: It seems unfair, and it seems like there'd be a

89
00:04:33,800 --> 00:04:36,240
Speaker 1: consumer law against it, or there should be a consumer

90
00:04:36,320 --> 00:04:38,599
Speaker 1: law against it. Well, let me give you a couple

91
00:04:38,640 --> 00:04:42,839
Speaker 1: of examples that I think most people would probably find inoffensive. Um. So,

92
00:04:42,920 --> 00:04:46,960
Speaker 1: for example, movie theaters often charge matinee prices for early

93
00:04:47,160 --> 00:04:50,200
Speaker 1: showings that are lower than than sort of the evening showings.

94
00:04:50,760 --> 00:04:52,360
Speaker 1: And the reason they tend to do that is because

95
00:04:52,360 --> 00:04:55,880
Speaker 1: people who can go to movies during the day um

96
00:04:55,920 --> 00:04:58,960
Speaker 1: tend to be people without jobs, um and therefore people

97
00:04:59,000 --> 00:05:01,080
Speaker 1: perhaps without the means to pay the higher price, and

98
00:05:01,120 --> 00:05:03,760
Speaker 1: so merely by charging different prices at different times of day,

99
00:05:03,800 --> 00:05:08,039
Speaker 1: they're actually differentiating between those who I can't afford to

100
00:05:08,040 --> 00:05:11,560
Speaker 1: pay the higher price, and those those who can or

101
00:05:11,680 --> 00:05:14,400
Speaker 1: coupon people with the time to clip coupon to get

102
00:05:14,400 --> 00:05:18,520
Speaker 1: a lower price because they use the coupon. Folks who don't,

103
00:05:18,600 --> 00:05:20,919
Speaker 1: or who value their time more highly, who tend to

104
00:05:20,920 --> 00:05:24,200
Speaker 1: be wealthier individuals, maybe don't have that time, uh, and

105
00:05:24,320 --> 00:05:26,480
Speaker 1: so they end up paying the higher price. What we're

106
00:05:26,520 --> 00:05:28,560
Speaker 1: talking about here is a little different, obviously, but I

107
00:05:28,600 --> 00:05:31,799
Speaker 1: think it's a different version of the same idea um

108
00:05:31,880 --> 00:05:35,640
Speaker 1: that charging people different prices is certainly not forbidden as

109
00:05:35,680 --> 00:05:38,640
Speaker 1: a matter of course by unfair competition law. Do you

110
00:05:38,720 --> 00:05:42,000
Speaker 1: think that this might be dismissed even before it gets

111
00:05:42,040 --> 00:05:45,200
Speaker 1: to trial. My guess is it probably will be, because

112
00:05:45,240 --> 00:05:46,880
Speaker 1: I don't think this is the sort of case in

113
00:05:46,880 --> 00:05:50,080
Speaker 1: which there's much in dispute factually, and of course we

114
00:05:50,120 --> 00:05:52,480
Speaker 1: haven't seen the answer in the case from serious xamin

115
00:05:52,560 --> 00:05:54,400
Speaker 1: But my guess is this is much more sort of

116
00:05:54,440 --> 00:05:57,840
Speaker 1: a question of legal policy and what sort of practices

117
00:05:58,120 --> 00:06:01,559
Speaker 1: should be allowed and shouldn't be loud And unless the

118
00:06:01,680 --> 00:06:04,920
Speaker 1: federal court in California wants to really strike out there

119
00:06:04,960 --> 00:06:08,120
Speaker 1: in a market regulatory direction that hasn't been the case before,

120
00:06:08,320 --> 00:06:10,919
Speaker 1: it's unlikely to proceed probably beyond a motion to dismiss

121
00:06:11,160 --> 00:06:13,839
Speaker 1: or summary judgment stage. Do you think that the lawyers

122
00:06:13,920 --> 00:06:17,039
Speaker 1: file this with the idea of making it into a

123
00:06:17,120 --> 00:06:20,760
Speaker 1: class action down the road. It certainly sounds like the

124
00:06:20,880 --> 00:06:24,440
Speaker 1: kind of case that could be a class action. UM.

125
00:06:24,480 --> 00:06:28,320
Speaker 1: The worry there is that, you know, perhaps because each

126
00:06:28,360 --> 00:06:33,560
Speaker 1: individual customers experience is so different, um in that you know,

127
00:06:33,600 --> 00:06:35,120
Speaker 1: it kind of depends on whether you call and what

128
00:06:35,320 --> 00:06:37,839
Speaker 1: you've got, um, that it might be difficult to say

129
00:06:37,839 --> 00:06:39,520
Speaker 1: that they all have the sort of same common interest

130
00:06:39,600 --> 00:06:42,400
Speaker 1: that a class action usually responds to. But it certainly

131
00:06:42,400 --> 00:06:44,520
Speaker 1: does have that flavor given that he's he's really trying

132
00:06:44,560 --> 00:06:46,800
Speaker 1: to affect a change in their business practice rather than

133
00:06:46,960 --> 00:06:49,279
Speaker 1: you know, recover some substantial amount of money that he

134
00:06:49,400 --> 00:06:53,839
Speaker 1: himself lost. So you're researching the ways in which companies

135
00:06:53,880 --> 00:06:58,560
Speaker 1: you sophisticated marketing techniques on consumers. Tell us a little

136
00:06:58,560 --> 00:07:02,240
Speaker 1: bit about what you're looking into. Well, this is really

137
00:07:02,279 --> 00:07:06,359
Speaker 1: where the serious XM case and my research overlap, which

138
00:07:06,400 --> 00:07:09,880
Speaker 1: is that I think the real danger that the Enrique's

139
00:07:09,920 --> 00:07:12,320
Speaker 1: case sort of brings to mind is not so much

140
00:07:12,360 --> 00:07:15,320
Speaker 1: that an individual customer might get a worse rate because

141
00:07:15,360 --> 00:07:18,480
Speaker 1: they're an existing customer as opposed to a new customer.

142
00:07:18,840 --> 00:07:21,320
Speaker 1: I mean, don't get me wrong, that upsets people. And

143
00:07:21,320 --> 00:07:23,960
Speaker 1: in fact, there's an a T and T mobile uh

144
00:07:24,360 --> 00:07:27,440
Speaker 1: AD campaign out right now where they're promising and prominently

145
00:07:27,480 --> 00:07:30,000
Speaker 1: featuring their promise to give the same rates to existing

146
00:07:30,000 --> 00:07:32,880
Speaker 1: a new customer. So obviously that's something that consumers look

147
00:07:32,880 --> 00:07:35,600
Speaker 1: out for. But I think the real danger here is

148
00:07:36,040 --> 00:07:41,960
Speaker 1: that as we get much and much more sophisticated pricing mechanisms,

149
00:07:42,000 --> 00:07:46,000
Speaker 1: particularly the online world, where that you're on Amazon, they

150
00:07:46,040 --> 00:07:47,960
Speaker 1: know exactly who you are, they know exactly what you've

151
00:07:48,000 --> 00:07:52,280
Speaker 1: purchased and didn't purchase before um, and they have very

152
00:07:52,280 --> 00:07:55,800
Speaker 1: sophisticated algorithms where they run all sorts of sort of

153
00:07:55,800 --> 00:07:59,120
Speaker 1: machine learning experiences through them. It could be the case

154
00:07:59,480 --> 00:08:02,920
Speaker 1: that you end up paying everyone is paying their own

155
00:08:03,040 --> 00:08:06,080
Speaker 1: very very sort of tailored price, given exactly who they are.

156
00:08:06,520 --> 00:08:10,160
Speaker 1: And so that degree of price discrimination isn't about generalizations

157
00:08:10,200 --> 00:08:11,560
Speaker 1: like can you go to a movie at three in

158
00:08:11,560 --> 00:08:14,400
Speaker 1: the afternoon versus seven in the evening. That's could be

159
00:08:14,440 --> 00:08:16,720
Speaker 1: a lot about your purchasing practices where you live. It

160
00:08:16,720 --> 00:08:19,160
Speaker 1: could be end up being about your race and your class,

161
00:08:19,200 --> 00:08:21,320
Speaker 1: and your gender and all sorts of other things that

162
00:08:21,360 --> 00:08:25,480
Speaker 1: I think make people much more worried about, um, you know,

163
00:08:25,680 --> 00:08:27,640
Speaker 1: differential pricing and all the things that go with it.

164
00:08:29,000 --> 00:08:31,480
Speaker 1: I have to tell you I identified with him because

165
00:08:31,720 --> 00:08:35,760
Speaker 1: you know, the constant haggling for prices is time consuming

166
00:08:36,040 --> 00:08:39,040
Speaker 1: and just a hassle. I'm completely with you, And it

167
00:08:39,200 --> 00:08:41,720
Speaker 1: sort of turns around some of the notions that are

168
00:08:41,720 --> 00:08:44,679
Speaker 1: behind older price discrimination models, which are that consumers with

169
00:08:44,800 --> 00:08:47,400
Speaker 1: more time on their hands end up getting the lower price.

170
00:08:47,760 --> 00:08:49,960
Speaker 1: In some sense, that's fine because you value your time,

171
00:08:50,080 --> 00:08:52,320
Speaker 1: you know, less than you value the savings. But a

172
00:08:52,360 --> 00:08:54,600
Speaker 1: lot of really low income people have less time, you know,

173
00:08:54,600 --> 00:08:56,960
Speaker 1: they're holding down two jobs. And so Consumer Reports has

174
00:08:56,960 --> 00:08:58,920
Speaker 1: actually studied this. They call it the shmo tax, because

175
00:08:58,920 --> 00:09:01,840
Speaker 1: you're just some schmo. Lower income folks end up paying

176
00:09:01,960 --> 00:09:04,680
Speaker 1: higher prices in certain instances because they don't have the

177
00:09:04,679 --> 00:09:06,600
Speaker 1: time to make the kind of phone calls that Enriquez

178
00:09:06,640 --> 00:09:08,560
Speaker 1: is complaining about. So I don't want to return myself

179
00:09:08,600 --> 00:09:11,559
Speaker 1: as unsympathetic to that problem, but I do think it's

180
00:09:11,559 --> 00:09:14,960
Speaker 1: pretty clear that, as currently constituted, the legal system actually

181
00:09:15,240 --> 00:09:17,400
Speaker 1: has not come to grips with that as something that

182
00:09:17,440 --> 00:09:20,679
Speaker 1: should regulate. Thanks Jim that's Jim Gibson of the University

183
00:09:20,679 --> 00:09:25,600
Speaker 1: of Richmond Law School. President Joe Biden is not backing

184
00:09:25,640 --> 00:09:28,640
Speaker 1: down from his mandate that all employers with more than

185
00:09:28,679 --> 00:09:33,200
Speaker 1: a hundred workers require vaccines or weekly COVID tests. That's

186
00:09:33,240 --> 00:09:37,280
Speaker 1: despite pushback from Republican governors like Florida's Rhn de Santis.

187
00:09:37,640 --> 00:09:40,640
Speaker 1: That's the worst kind of politics because it's putting the

188
00:09:40,679 --> 00:09:44,680
Speaker 1: lives of citizens of their states, especially children, at risk.

189
00:09:45,640 --> 00:09:49,280
Speaker 1: And I refused to give into it. When you have

190
00:09:49,360 --> 00:09:55,720
Speaker 1: a president like Biden issuing unconstitutional edicts against the American people,

191
00:09:56,480 --> 00:09:59,319
Speaker 1: we have a responsibility to stand up for the constitution

192
00:09:59,360 --> 00:10:03,319
Speaker 1: and to fight. Two dozen Republican state attorneys general sent

193
00:10:03,400 --> 00:10:07,000
Speaker 1: a letter to the Biden administration on Thursday saying they'll

194
00:10:07,040 --> 00:10:10,640
Speaker 1: sue over any federal vaccine mandates. The first to the

195
00:10:10,679 --> 00:10:13,760
Speaker 1: Court House was Arizona. Joining me to help sort the

196
00:10:13,840 --> 00:10:17,760
Speaker 1: legal challenges out, is Kate Andreas, a professor at Columbia

197
00:10:17,840 --> 00:10:23,280
Speaker 1: Law School. States routinely require school aged children to receive

198
00:10:23,600 --> 00:10:27,080
Speaker 1: a long list of vaccines. Does the federal government have

199
00:10:27,160 --> 00:10:31,520
Speaker 1: the same power? Those states have broad authority to protect

200
00:10:31,520 --> 00:10:34,240
Speaker 1: the health and welfare of their residents, and they have

201
00:10:34,360 --> 00:10:39,320
Speaker 1: the ability to impose vaccine mandates generally, and the Supreme

202
00:10:39,320 --> 00:10:42,600
Speaker 1: Court has held that nothing in the Constitution deprived state

203
00:10:42,760 --> 00:10:45,920
Speaker 1: of that right to broad authority and as long as

204
00:10:45,960 --> 00:10:49,839
Speaker 1: they impose reasonable vaccine mandates. But they can do that.

205
00:10:50,280 --> 00:10:53,360
Speaker 1: The federal government's power is a little bit different. It

206
00:10:53,480 --> 00:10:58,040
Speaker 1: can legislate in ways that are permissible under the Constitution,

207
00:10:58,240 --> 00:11:03,640
Speaker 1: and the executive can regulate in ways that Congress has permitted.

208
00:11:04,120 --> 00:11:08,719
Speaker 1: So the federal government has the ability under the Occupational

209
00:11:08,720 --> 00:11:13,520
Speaker 1: Health and Safety Act to impose on employers the duty

210
00:11:13,880 --> 00:11:18,040
Speaker 1: to create safe workplaces. So OSHA is an agency within

211
00:11:18,120 --> 00:11:21,400
Speaker 1: the Department of Labor that has broad authority to require

212
00:11:21,480 --> 00:11:26,120
Speaker 1: employers to adopt conditions or practices that are necessary or

213
00:11:26,160 --> 00:11:29,240
Speaker 1: appropriate to provide a safe and healthy place of employment.

214
00:11:29,360 --> 00:11:32,600
Speaker 1: So that gives the President and the Department of Labor

215
00:11:33,120 --> 00:11:36,920
Speaker 1: the authority to promulgate vaccine mandates in order to ensure

216
00:11:36,960 --> 00:11:40,080
Speaker 1: safe workplaces. So it's a broad authority, but it's a

217
00:11:40,080 --> 00:11:42,800
Speaker 1: little bit different than what the states can do, which

218
00:11:42,880 --> 00:11:46,840
Speaker 1: is kind of a more unlimited authority to impose vaccine mandates.

219
00:11:46,880 --> 00:11:50,679
Speaker 1: So Biden is relying on the Occupational Safety and Health

220
00:11:50,720 --> 00:11:57,320
Speaker 1: Act from nine seventy, but that doesn't explicitly cover compelled vaccinations,

221
00:11:57,480 --> 00:12:01,120
Speaker 1: So where are they getting the authority? What the Occupational

222
00:12:01,160 --> 00:12:04,360
Speaker 1: Safety and health that does. It imposes on employers a

223
00:12:04,440 --> 00:12:08,160
Speaker 1: duty to have a safe workplace, and it gives the

224
00:12:08,320 --> 00:12:12,640
Speaker 1: agency the ability to promulgate more specific rules in order

225
00:12:12,640 --> 00:12:16,680
Speaker 1: to ensure that workplaces are safe. So it doesn't lift

226
00:12:16,760 --> 00:12:21,240
Speaker 1: every particular specific problem or danger that may come up. Rather,

227
00:12:21,280 --> 00:12:23,640
Speaker 1: it's a broad authority that allows the government to then

228
00:12:23,679 --> 00:12:28,000
Speaker 1: regulate reasonably to protect workers. And it's pretty clear, based

229
00:12:28,120 --> 00:12:30,959
Speaker 1: on data that we have from the last eighteen months,

230
00:12:30,960 --> 00:12:37,040
Speaker 1: that COVID poses a really grave threat to workers and workplaces.

231
00:12:37,080 --> 00:12:40,200
Speaker 1: So based on that, the agency should be found to

232
00:12:40,200 --> 00:12:45,280
Speaker 1: have authority to protect workers to address that danger. Arizona's

233
00:12:45,400 --> 00:12:49,520
Speaker 1: Attorney General, Mark Bernovitch admitted to Bloomberg that his lawsuit

234
00:12:49,679 --> 00:12:52,640
Speaker 1: is almost certain to be dismissed by a judge because

235
00:12:52,679 --> 00:12:57,199
Speaker 1: the actual rules for the vaccine mandate haven't been finalized yet,

236
00:12:57,400 --> 00:13:00,400
Speaker 1: and other Republican attorneys general signaled that they'll wait for

237
00:13:00,440 --> 00:13:03,560
Speaker 1: the rules before going to court. So is it important

238
00:13:03,600 --> 00:13:08,000
Speaker 1: how OSHA frames the emergency rule? Yeah? So good point

239
00:13:08,040 --> 00:13:11,240
Speaker 1: that OSHA would not be acting here through its normal process,

240
00:13:11,240 --> 00:13:14,480
Speaker 1: which can take several years to promulgate a rule. The

241
00:13:14,520 --> 00:13:17,720
Speaker 1: agency also has authority to quickly issue a rule, and

242
00:13:17,760 --> 00:13:21,680
Speaker 1: that's known as an emergency temporary standard. And in order

243
00:13:21,720 --> 00:13:25,200
Speaker 1: to issue an emergency temporary standard, the agency has to

244
00:13:25,240 --> 00:13:28,320
Speaker 1: show that workers are exposed to a grave danger and

245
00:13:28,400 --> 00:13:31,679
Speaker 1: that the rule is necessary to address the danger. It's

246
00:13:31,720 --> 00:13:33,760
Speaker 1: also typically the case that the rule has to be

247
00:13:33,800 --> 00:13:38,479
Speaker 1: feasible for the employer to imporce. So what precisely the

248
00:13:38,520 --> 00:13:42,960
Speaker 1: emergency temporary standard says and requires is going to be important, right,

249
00:13:43,000 --> 00:13:45,160
Speaker 1: the agency has to show that there's a grave danger

250
00:13:45,520 --> 00:13:48,160
Speaker 1: and that the rule is necessary to address that danger.

251
00:13:48,840 --> 00:13:52,319
Speaker 1: So would the most likely challenge be to whether COVID

252
00:13:52,440 --> 00:13:56,040
Speaker 1: presents a grave danger and whether the rule is necessary?

253
00:13:56,240 --> 00:13:59,240
Speaker 1: I mean, I think there's quite significant evidence that COVID

254
00:13:59,360 --> 00:14:02,960
Speaker 1: presents the danger. So my guess is that most of

255
00:14:02,960 --> 00:14:05,520
Speaker 1: the arguments will focus on whether the rule is necessary

256
00:14:05,520 --> 00:14:09,840
Speaker 1: to address that danger. Typically, court gives expert agencies like

257
00:14:09,840 --> 00:14:13,000
Speaker 1: SOSHA a lot of difference with respect of their determination

258
00:14:13,120 --> 00:14:15,439
Speaker 1: as to whether a rule is necessary to address the

259
00:14:15,559 --> 00:14:19,000
Speaker 1: danger because they're experts on what place safety. But we

260
00:14:19,040 --> 00:14:22,240
Speaker 1: would have to see what precisely OSHA offers in terms

261
00:14:22,280 --> 00:14:25,440
Speaker 1: of its reasoning and that would then be challenged in court.

262
00:14:25,640 --> 00:14:28,000
Speaker 1: Biden pledged to go all the way to the Supreme

263
00:14:28,000 --> 00:14:30,880
Speaker 1: Court if necessary. Do you have any general idea of

264
00:14:30,880 --> 00:14:34,280
Speaker 1: how this might fare at the High Court, which recently

265
00:14:34,360 --> 00:14:38,800
Speaker 1: scraped the c d C S eviction moratorium. It's always

266
00:14:38,840 --> 00:14:42,320
Speaker 1: hard to predict, particularly given the changes in the Federal

267
00:14:42,360 --> 00:14:45,480
Speaker 1: Court and in the Supreme Court composition. But I really

268
00:14:45,520 --> 00:14:49,280
Speaker 1: do think that BOSHA is on very strong legal ground here.

269
00:14:49,480 --> 00:14:53,359
Speaker 1: And if it follows proper procedures and offer sufficient spaces

270
00:14:53,520 --> 00:14:57,560
Speaker 1: for its actions and also designs the temporary standard in

271
00:14:57,560 --> 00:14:59,840
Speaker 1: a way that makes it feasible for employers to come

272
00:15:00,040 --> 00:15:04,040
Speaker 1: I that at least under exists in precedent, it should

273
00:15:04,120 --> 00:15:10,200
Speaker 1: survive review. Unions have warned that mandatory vaccination policies in

274
00:15:10,200 --> 00:15:15,320
Speaker 1: the workplace have to be negotiated. Where do they stand here? Yeah,

275
00:15:15,360 --> 00:15:21,240
Speaker 1: so typically UM, when an employer wishes to change a

276
00:15:21,600 --> 00:15:27,240
Speaker 1: term and condition of employment when its workforces is UM unionize,

277
00:15:27,280 --> 00:15:30,120
Speaker 1: the employer has to negotiate how that is done and

278
00:15:30,160 --> 00:15:32,840
Speaker 1: what the terms are. And that's also just good employment

279
00:15:33,000 --> 00:15:35,280
Speaker 1: practice because workers have a right to sort of have

280
00:15:35,360 --> 00:15:38,800
Speaker 1: a voice and and how rules are implemented. So if

281
00:15:39,080 --> 00:15:42,480
Speaker 1: we're talking about a situation without a governmental mandate, if

282
00:15:42,520 --> 00:15:45,000
Speaker 1: an employer wants to impose a mandate and the employ

283
00:15:45,120 --> 00:15:48,320
Speaker 1: and the workforce is unionized, then the employer would be

284
00:15:48,360 --> 00:15:52,040
Speaker 1: required to negotiate about how that is done. UM. With

285
00:15:52,120 --> 00:15:55,000
Speaker 1: respect to when there's a federal rule, however, as that

286
00:15:55,040 --> 00:15:57,880
Speaker 1: employers have to comply with that, Employers have to comply

287
00:15:57,960 --> 00:16:01,400
Speaker 1: with that, and that overrides anything that you know is

288
00:16:01,440 --> 00:16:04,160
Speaker 1: to the contrary and a contract. And I do think

289
00:16:04,200 --> 00:16:08,680
Speaker 1: a lot of unions actually have recently recognized, um, that

290
00:16:08,680 --> 00:16:12,560
Speaker 1: that that these vaccine protections are actually part of protecting

291
00:16:12,560 --> 00:16:16,920
Speaker 1: all workers and so UM. Although some unions have expressed concerns,

292
00:16:16,960 --> 00:16:20,400
Speaker 1: many others have actually argued for more protection so that

293
00:16:20,440 --> 00:16:23,320
Speaker 1: all of their workers can be safe at work. Going

294
00:16:23,360 --> 00:16:26,600
Speaker 1: back to lawsuits for a moment, do Republican states have

295
00:16:26,880 --> 00:16:31,400
Speaker 1: standing to challenge the mandate. That's a good question, and

296
00:16:31,440 --> 00:16:35,560
Speaker 1: I think it's unclear whether they would have standing or not. UM,

297
00:16:35,600 --> 00:16:38,760
Speaker 1: whether they would able to be able to show that

298
00:16:38,320 --> 00:16:42,360
Speaker 1: that the states were actually harmed in some way UM

299
00:16:42,480 --> 00:16:45,160
Speaker 1: is that is an open question, UM. But I would

300
00:16:45,160 --> 00:16:48,680
Speaker 1: expect that there would be others who would have standing,

301
00:16:48,720 --> 00:16:52,600
Speaker 1: including workers and businesses, and that the states could then

302
00:16:53,200 --> 00:16:56,080
Speaker 1: um you know, opine and in the cases even if

303
00:16:56,120 --> 00:16:59,560
Speaker 1: they themselves don't have standing, I would expect to see

304
00:16:59,600 --> 00:17:02,800
Speaker 1: a lot of businesses or business groups like the Chamber

305
00:17:02,800 --> 00:17:07,760
Speaker 1: of Commerce challenging this possibly, although it's notable that a

306
00:17:07,760 --> 00:17:11,320
Speaker 1: lot of employers have voluntarily imposed um, you know, either

307
00:17:12,080 --> 00:17:14,919
Speaker 1: a mandate I'll be at once with for vaccines with

308
00:17:15,040 --> 00:17:17,960
Speaker 1: some exceptions, because I think a lot of employers recognize

309
00:17:17,960 --> 00:17:20,720
Speaker 1: that in order to get the economy working again, there's

310
00:17:20,840 --> 00:17:25,560
Speaker 1: um good reason to have more widespread vaccination, as long

311
00:17:25,600 --> 00:17:29,120
Speaker 1: as there are sufficient exceptions to protect those workers who

312
00:17:29,200 --> 00:17:33,440
Speaker 1: either can't for some reason. Um. So, yes, they think

313
00:17:33,440 --> 00:17:35,960
Speaker 1: it's quite likely there might be suits. But I also

314
00:17:35,960 --> 00:17:38,240
Speaker 1: think a lot of the major employers are moving in

315
00:17:38,320 --> 00:17:42,280
Speaker 1: this direction on their own. So what happens if a state,

316
00:17:42,440 --> 00:17:47,880
Speaker 1: let's say Florida has a law saying or executive order

317
00:17:48,119 --> 00:17:54,120
Speaker 1: against vaccine mandates, and then this vaccine mandate from OSHA

318
00:17:54,320 --> 00:17:59,840
Speaker 1: comes along, does the federal regulation take precedence. Generally, federal

319
00:18:00,040 --> 00:18:03,160
Speaker 1: law pre empts state law. So if there's a conflict

320
00:18:03,240 --> 00:18:06,399
Speaker 1: between federal law and state law and the Constitution, asmong

321
00:18:06,400 --> 00:18:09,320
Speaker 1: as the federal law is it self legitimate, um or

322
00:18:09,359 --> 00:18:13,240
Speaker 1: the federal regulation is it self legitimate, it would preempt

323
00:18:13,320 --> 00:18:15,920
Speaker 1: or kind of kick out the state law that is

324
00:18:15,960 --> 00:18:18,440
Speaker 1: to the country. That's not to say that it won't

325
00:18:18,440 --> 00:18:22,359
Speaker 1: be contested, because they'll still be the question whether OSHA

326
00:18:22,560 --> 00:18:25,399
Speaker 1: has the authority to promulgate the rule and whether the

327
00:18:25,600 --> 00:18:28,439
Speaker 1: rule or the standard is acceptable in the way that

328
00:18:28,480 --> 00:18:30,800
Speaker 1: they've done it. But if it is helps its illegal,

329
00:18:31,080 --> 00:18:34,720
Speaker 1: then it would um pre empt or kind of override

330
00:18:35,400 --> 00:18:38,880
Speaker 1: any state rule to the contrary. And that's true across

331
00:18:38,920 --> 00:18:41,240
Speaker 1: the board, whether we're talking about help and safety issues

332
00:18:41,359 --> 00:18:45,240
Speaker 1: or um any other area in which the federal government

333
00:18:45,240 --> 00:18:50,320
Speaker 1: has uh the ability to legislate or regulate. When Biden

334
00:18:50,400 --> 00:18:53,840
Speaker 1: was announcing that the c d C was going to

335
00:18:53,880 --> 00:18:58,480
Speaker 1: do a second moratorium on evictions, he said, well, constitutional

336
00:18:58,520 --> 00:19:00,919
Speaker 1: scholars say, there may be EQUI question about this, it

337
00:19:01,000 --> 00:19:04,120
Speaker 1: may not work, but we'll buy some time. So in

338
00:19:04,119 --> 00:19:07,879
Speaker 1: this case, even if the rule is in effect for

339
00:19:07,920 --> 00:19:11,600
Speaker 1: several months, the legal challenges will take long enough that

340
00:19:12,200 --> 00:19:15,680
Speaker 1: millions of Americans could be vaccinated while the rules in effect.

341
00:19:17,000 --> 00:19:22,520
Speaker 1: That depends because sometimes court stay you can kind of

342
00:19:22,520 --> 00:19:26,719
Speaker 1: postpone a rule while they're considering the issue. So I

343
00:19:26,720 --> 00:19:32,400
Speaker 1: think that question of how, um how immediately they rule

344
00:19:32,520 --> 00:19:35,919
Speaker 1: go into effect really depends on what happens in litigation.

345
00:19:36,240 --> 00:19:40,040
Speaker 1: But as I said previously, because the government is on

346
00:19:40,119 --> 00:19:43,000
Speaker 1: such strong grounds here in the sense that there really

347
00:19:43,080 --> 00:19:45,879
Speaker 1: is a grave or at least it appears right that

348
00:19:45,920 --> 00:19:48,520
Speaker 1: there's quite a bit of evidence that there's grave threat

349
00:19:48,560 --> 00:19:52,679
Speaker 1: to workers health, UM, I would expect that. UM it's

350
00:19:52,760 --> 00:19:55,800
Speaker 1: quite possible court would allow the temporary standard to go

351
00:19:55,840 --> 00:19:59,160
Speaker 1: into effect pending litigation, but it could go either way.

352
00:19:59,480 --> 00:20:03,479
Speaker 1: Thanks k that's Professor Kate Andreas of Columbia Law School.

353
00:20:03,920 --> 00:20:06,000
Speaker 1: Remember you can always get the latest legal news on

354
00:20:06,040 --> 00:20:10,040
Speaker 1: our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify,

355
00:20:10,119 --> 00:20:15,000
Speaker 1: and at www dot Bloomberg dot com, slash podcast Slash Law.

356
00:20:15,560 --> 00:20:17,840
Speaker 1: I'm Drew Basso, and you're listening to Bloomberg