Speaker 1: This is Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: President Trump has given no indication that he's preparing to
Speaker 1: concede the election. In fact, Trump has indicated he's prepared
Speaker 1: to explore all legal options. His personal lawyer, Rudy Giuliani,
Speaker 1: has said they're preparing to file lawsuits in several states
Speaker 1: over ballot fraud, despite the fact that there's been no
Speaker 1: evidence of widespread irregularities in the election or any fraudulent votes,
Speaker 1: and courts have already dismissed several lawsuits in Georgia, Nevada, Michigan,
Speaker 1: and Pennsylvania. Joining me as election law expert, Derek Muller,
Speaker 1: a professor at the University of Iowa College of Law,
Speaker 1: is litigation over the election more difficult after the votes
Speaker 1: have been counted. Absolutely. You know, once those ballots are
Speaker 1: taken out of the envelopes, when you're dealing with apps
Speaker 1: and t envelopes or provisional ballots that a jurisdiction chooses
Speaker 1: to count, you know, they're all commingled, they're all counted,
Speaker 1: they're all put the together. So legal challenges are pretty
Speaker 1: limited at that point. You're looking at recounts recounts can
Speaker 1: look at, you know, whether or not there were over
Speaker 1: votes or under votes. That the machines are much better
Speaker 1: at reading these things nowadays, the optical scan ballots are
Speaker 1: very good at that. Maybe there's a little bit of
Speaker 1: a dispute of a ballot here there, you know, some
Speaker 1: set of absentee ballots that were rejected for a signature
Speaker 1: mismatch that maybe you want to get counted. But unless
Speaker 1: you're able to allege something like systemic fraud in the
Speaker 1: election undermining the results, your options just become very very limited.
Speaker 1: Once all the ballots have been counted the first time,
Speaker 1: you would be challenging ballot by ballot then, So what
Speaker 1: would it take to have systemic fraud? What would that
Speaker 1: look like? Yeah, I mean so in the jurisdictions where
Speaker 1: its happened, you know, So we can think about North
Speaker 1: Carolina congressional election that was thrown out for first systemic fraud.
Speaker 1: It was a pretty narrow election, but you know, there
Speaker 1: was ample evidence of a campaign essentially bribing someone to
Speaker 1: man manufacture absentee ballot requests, falsifying the absentee ballots by
Speaker 1: completing them with forged signatures, completing them on behalf of
Speaker 1: someone else and submitting them and that there was such
Speaker 1: sufficient widespread evidence of fraud that the result of the
Speaker 1: election was in doubt. Um. Now that was a few
Speaker 1: hundred ballots, and um. Sometimes these kinds of dispute arise
Speaker 1: in a in a city council or mayoral election in
Speaker 1: a locality where it's a couple of thousand ballots that
Speaker 1: are cast in total and someone's able to sort of
Speaker 1: rig the election. But I mean, those are those are
Speaker 1: pretty egregious examples, and in order to sort of achieve
Speaker 1: fraud at that kind of scale is just, you know,
Speaker 1: it's very difficult to do. So I think when we're
Speaker 1: talking about that kind of evidence, it's worth emphasizing how
Speaker 1: rare it is and how difficult it is to achieve
Speaker 1: at that at that level. Rudy Giuliani, the president's personal attorney,
Speaker 1: on Fox on Sunday. He said that team is prepared
Speaker 1: to point to dozens of witnesses in Pennsylvania who would
Speaker 1: attest under oath that they observed instances of election mouthfeasance. Quote,
Speaker 1: there are upwards of fifty witnesses and this will be
Speaker 1: the subject of a lawsuit that we filed Monday, for
Speaker 1: violating civil rights, for conducting an unfair election, for violating
Speaker 1: the law of the state, for treating Pittsburgh and Philadelphia
Speaker 1: different than the rest of the state. What is he
Speaker 1: referring to here. Let's say you found a couple of
Speaker 1: witnesses who said I observed fraud. Does that just apply
Speaker 1: to the ballot that they observed or does it apply
Speaker 1: to the whole system there? Yeah, this is tricky. I
Speaker 1: mean I want to work backwards for a minute to
Speaker 1: think about the remedy. Right, Let's say you established all this,
Speaker 1: what should happen? Um. You know, most of the time
Speaker 1: we say you hold a new election, but that's you know,
Speaker 1: when when we're thinking about the Electoral College meeting December fourteenth,
Speaker 1: you know that seems pretty much impossible to do. Um. Additionally,
Speaker 1: you know, there's some questions about the legislature key get involved.
Speaker 1: But so far, I think the legislature seemed satisfied to
Speaker 1: allow the election process to play out. So we can
Speaker 1: take a step back and to think about what kinds
Speaker 1: of fraud and evidence they have. And there's no question
Speaker 1: I think, Um, you know, the campaign did win on election.
Speaker 1: Observers that were in a room hundred feet away when
Speaker 1: they were entitled to be six feet away. UM, to
Speaker 1: see what was happening in those jurisdictions, and maybe you're
Speaker 1: saying there's inconsistencies and how um, sort of the verification
Speaker 1: of absentee ballots was processed from from county to county, right,
Speaker 1: and so there's a potentially an equal protection argument to
Speaker 1: raise there. But you know, but but each of these
Speaker 1: things it's really hard to establish that, you know, on
Speaker 1: the equal protection front. Let's say that's that the treatment
Speaker 1: across counties was so desparate as to arise the level
Speaker 1: of arbitrary and unfair treatment, which is a kind of
Speaker 1: level that Bush Weegre talked about, sort of arbitrary treatment
Speaker 1: of voters from from county to county. Another is to
Speaker 1: sort of say, well, if there's no observers, what's the harm.
Speaker 1: You know, a lot of cases say well, observers have
Speaker 1: a right to be there. But we also know there's
Speaker 1: a bipartisan process of canvassing votes of Republicans and Democrats
Speaker 1: in all counties and pencil mania uh, sort of participating
Speaker 1: in that process even if they're not formally affiliated with
Speaker 1: the campaign. UM. And then finally you know the fact
Speaker 1: that there are witnesses who come forward and testify about
Speaker 1: something that they can and I think the Trump campaign
Speaker 1: has filed lawsuits where they've had witnesses saying we've observed this,
Speaker 1: This appears to be malfeasance. This seems to be a problem. Um.
Speaker 1: And then you know, when there's a court hearing and
Speaker 1: an election officials given a chance to ask questions on
Speaker 1: the other side and provide evidence about what they were doing.
Speaker 1: Some of these cases have been thrown out in other jurisdictions,
Speaker 1: so you can have a witness alleged something, but they
Speaker 1: might still be missing the context. So um, there's no
Speaker 1: question I think that the Trump campaign has some legitimate
Speaker 1: grievances about especially observation of the counting process. Um. I
Speaker 1: have no doubt they're going to bring forward witnesses that
Speaker 1: will sort of describe some regularities they saw. But then
Speaker 1: you sort of wait for the legal process to play
Speaker 1: out to see what the explanations are there. And again,
Speaker 1: I think at this stage, I think it's very hard
Speaker 1: to allege that there's such systematic fraud to suggest that
Speaker 1: that the confidence of the election isn't doubt. Their greatest
Speaker 1: efforts seemed to be focused on Pennsylvania. The election officials
Speaker 1: there have said that both sides were allowed to view
Speaker 1: the ballot counting process and that it was even live streaming. Yeah,
Speaker 1: and I think again this gets to, you know, the
Speaker 1: level of confidence you have in the election administrators at
Speaker 1: various stages. Um, And I'll point to a couple of things.
Speaker 1: So when you know, I'm a live streaming point, I
Speaker 1: think it's important. But you know, it's not like it's
Speaker 1: not like such a camera over each table providing everyone
Speaker 1: sort of a look at what's happening in each stage
Speaker 1: of the canvassing process. Right, So, Um, you know that
Speaker 1: they're they're not concealing anything from the public, But I
Speaker 1: don't know that it's the most servisible for us to
Speaker 1: sort of exactly see what's happening. But you know, again,
Speaker 1: we sort of have professional poll workers, professionals who are
Speaker 1: sometimes some of them are full time, it's their full
Speaker 1: time jobs. Someone more broad in part time and are
Speaker 1: trained to handle this on a bipartisan basis. We're hopeling
Speaker 1: some Democrats who are canvassing the vote are opening the
Speaker 1: envelopes they're counting, and they're running through the machines if
Speaker 1: there's a problem, if there's a dispute that arises, you know,
Speaker 1: they'll they'll they'll try to resolve it amongst themselves or
Speaker 1: bring in a higher up to resolve the dispute. And
Speaker 1: on top of that is a chance for campaigns to
Speaker 1: send their own election observers to see what the workers
Speaker 1: are doing. And again, I think the Trump campaign did
Speaker 1: point out, you know, at various points in time they
Speaker 1: were denied the kind of access they wanted, and the
Speaker 1: court found in their favor that they should have had
Speaker 1: that access. But again, what's the sort of is the
Speaker 1: allegation that in the moments they weren't there, that there
Speaker 1: were somehow ballots being you know, fraudulently drafted. You know,
Speaker 1: is it that, um, you know, when they're opening the envelopes,
Speaker 1: they're not being as careful as they should be in
Speaker 1: verifying that all of the information on the on the
Speaker 1: on the envelope is accurate, that that that that it's
Speaker 1: properly sealed, that there's not stray marks on the secrecy envelope.
Speaker 1: You know that there's technical violations that can arise and
Speaker 1: that an observer might want to challenge, But again, you know,
Speaker 1: these are you know, in my judgment, sort of pretty
Speaker 1: small scale stuff to the extent that there's a cons
Speaker 1: earned being raised, and without that sort of evidence that
Speaker 1: there's something systemic happening, that there's some deeper concern about
Speaker 1: the administration of the process. It's really hard to get
Speaker 1: from we were denied observing to therefore we're casting sort
Speaker 1: of doubt on the election. There's still a missing link
Speaker 1: in there about the malfeasance that might have occurred. And again, um,
Speaker 1: I just so far, I haven't seen anything to that effect.
Speaker 1: Ben Ginsburg, who has been a Republican election lawyer who
Speaker 1: was behind Bush Fie Gore, he said that what he
Speaker 1: thought might be happening is that the Trump campaign was
Speaker 1: trying to slow down the count in states in the
Speaker 1: hope that the states don't complete the job of certifying
Speaker 1: results in time for the Electoral College to meet. So
Speaker 1: then you have those dates coming up. Do you think
Speaker 1: that they could slow it down enough that they wouldn't
Speaker 1: be able to certify at least by December fourte No,
Speaker 1: I don't think so. The strategy might be to slow
Speaker 1: it down a bit so that the legal team can
Speaker 1: kind of gather evidence and get things together and make
Speaker 1: sure again that some of these ballots aren't being processed
Speaker 1: so that they can challenge them later. Right again, as
Speaker 1: I mentioned, once they're ripped out of the envelope and
Speaker 1: dropped into the machine are gone. They're circulated and commingled
Speaker 1: with everything else. So I don't think it's a viable strategy,
Speaker 1: and I doubt that would be the strategies the except
Speaker 1: they're developing one at the Trump headquarters to sort of
Speaker 1: hold off until December fourteenth, when the electors meet. You know,
Speaker 1: that's just unrealistic. We when you think about Bush versus Score,
Speaker 1: I mean, that was thirty six days of agony with
Speaker 1: a series of pieces of litigation happening. But there was
Speaker 1: already a count in place, there was already a result.
Speaker 1: The Secretary of State was moving forward with the certification,
Speaker 1: and it was just a question of whether or not
Speaker 1: we need to do amend that certification, whether or not
Speaker 1: we need to change those totals, whether or not the
Speaker 1: recount would have altered things. So at this stage, you know,
Speaker 1: I expect the count to be done in the very
Speaker 1: near future, and then there's going to be, you know,
Speaker 1: potentially some more litigation about whether the election results should
Speaker 1: be set aside. Again, I think a very heavy lift
Speaker 1: litigation over the recount, which is certainly something that can
Speaker 1: extend a little bit longer, and how the Secretary of
Speaker 1: State should handle uncertainty in that stage. But it's also
Speaker 1: worth emphasizing as the margin grows larger in some of
Speaker 1: these states like Pennsylvania, and as it's not just Pennsylvania
Speaker 1: Trump needs to win the election, it would also be
Speaker 1: Arizona and Georgia, and it becomes more and more challenging exponentially.
Speaker 1: So as we start to think about building that path forward,
Speaker 1: do you know which states right now look like they
Speaker 1: would be eligible for a recount? I know that Trump
Speaker 1: said that they were going to ask for a recount
Speaker 1: in Michigan, and I don't know. Possibly Georgia, Yeah, I
Speaker 1: mean Georgia seems very close and could go to a recount.
Speaker 1: Wisconsin is another place where they would be entitled to
Speaker 1: a recount. You know, I think any of these jurisdictions,
Speaker 1: it depends on the state. Pennsylvania looks pretty good for
Speaker 1: a recount to um, it depends on whether it's under
Speaker 1: a quarter of a percent, half a percent, one percent.
Speaker 1: It can vary from jurisdiction to jurisdiction not You know,
Speaker 1: a recount is a recount. It it entitles you to
Speaker 1: sort of get in there and and and look at
Speaker 1: the ballots and rerun them through the machines. But you know,
Speaker 1: the machines are really good these days. They're very accurate
Speaker 1: and and there's not a lot that changes in a recount.
Speaker 1: Sometimes it can be a couple hundred votes. Um. So
Speaker 1: we can go back to twenty sixteen, where there was
Speaker 1: a recount in Wisconsin where the margin is almost exactly
Speaker 1: the margin it was right now, and the Trump campaign
Speaker 1: had won that state by about two votes and picked
Speaker 1: up about a hundred thirty votes in the recount, um.
Speaker 1: And that that's something you would expect that if there's
Speaker 1: sort of a random distribution of undercount undercounted votes, um,
Speaker 1: they're probably gonna cut slightly in favor of the candidate
Speaker 1: who's already ahead. So when we're talking about recounts, you know,
Speaker 1: and there's that statutory entitlement to it, they can slow
Speaker 1: down the process. The states have certification goals and objectives
Speaker 1: to complete recounts by a specific period of time. Flora
Speaker 1: two thousand was a very odd situation where there was
Speaker 1: a lot of fighting about how to count certain ballots,
Speaker 1: how a manual recount of these hanging chad ballots was
Speaker 1: supposed to work, right. I think states have much more
Speaker 1: streamlined recount procedures in place to sort of expedite this process.
Speaker 1: And so again it will slow things down, but but
Speaker 1: we'll just see if they choose to press forward with it,
Speaker 1: what that looks like. Does the state have to do
Speaker 1: the recount before they can certify the election? So most
Speaker 1: states have an unofficial result and then they have, you know,
Speaker 1: sort of the lot. There's a series of stages of
Speaker 1: canvassing that occur before where they get to the final certification. Now,
Speaker 1: again in Florida, the timing was to have the recount
Speaker 1: in place in theory, under the statute ahead of the
Speaker 1: certification deadline. But then there might be extenuating circumstances where
Speaker 1: you can continue and persist in your recount even after
Speaker 1: that certification deadline. So we've seen states and I think
Speaker 1: about the Al Frankin Norm Coleman election in Minnesota in
Speaker 1: two thousand eight, a Senate election that went to a recount,
Speaker 1: and with all the judicial wrangling, it took over six
Speaker 1: months to resolve that election. So even though there's a
Speaker 1: certification deadline, sometimes the legal wrangling can also push that
Speaker 1: much later. But one lesson we learned from Bush versus
Speaker 1: Gore is that the Supreme Court was really interested in
Speaker 1: having states resolve these disputes expeditiously. In presidential elections. They know,
Speaker 1: there's that hard date of the meeting of the Electoral
Speaker 1: College in December fourteen. Um. There's a softer date described
Speaker 1: as the safe harbor, which this year is December eight,
Speaker 1: Which is that states really ought to resolve all of
Speaker 1: their election disputes pertaining to electors in order for Congress
Speaker 1: to presume that those electors are are regularly chosen. UM.
Speaker 1: And so you can miss that deadline, but they's try
Speaker 1: not to. UM. They do update their totals a little
Speaker 1: bit after after the December eighth deadline. It happens, UM.
Speaker 1: But the point is we they're they're confident about who
Speaker 1: the winner is at that point. Whether or not they
Speaker 1: adjust some of the vote totals in the days after
Speaker 1: that is a different story. UM. But but but in theory,
Speaker 1: these states have statutory objectives to recount, to recount and complete, um,
Speaker 1: you know, before the certification deadline, and only sort of
Speaker 1: blow past that if there's some judicial problem that arises. Finally,
Speaker 1: I want to discuss the Supreme Court in this whole thing,
Speaker 1: because you know, Trump repeatedly has said this is going
Speaker 1: to be decided by the Supreme Court, and Justice Alito
Speaker 1: issued an order. Is there any possibility at this point
Speaker 1: that that case that the Supreme Court could still consider
Speaker 1: the case of those ballots that came in after election
Speaker 1: day three days until three days after and we're counted,
Speaker 1: So there's still a possibility they'll they'll hear that case.
Speaker 1: But I think it remains a different question about whether
Speaker 1: they would hear it um in time to affect the outcome,
Speaker 1: whether it would affect the outcome, and whether the remedy
Speaker 1: they offer um would necessarily be the one that the
Speaker 1: Trump campaign wants. So let me say that there's there's
Speaker 1: a lot of like moving pieces happening here. So right
Speaker 1: now that the mark origin in Pennsylvania is, you know,
Speaker 1: fifty thousand votes in Biden's favor. Um, So if there's
Speaker 1: a fight over this sort of batch of ballots after
Speaker 1: election day, one question we ask, because it doesn't even
Speaker 1: matter at the end of the day, right would that
Speaker 1: batch of ballots even make a difference. It's not clear
Speaker 1: how many are out there. It seems like a low number.
Speaker 1: I've seen numbers, as you know, maybe around ten thousand.
Speaker 1: I saw some report today fifty thousand, although I think
Speaker 1: that's probably a little bit high. But even that batch
Speaker 1: of ballots, right, it's not they're not all coming in
Speaker 1: for one candidate. They're coming in divided amongst candidates. So
Speaker 1: it's it's not clear that it's going to even affect
Speaker 1: the outcome of the election. If the margin is wide enough,
Speaker 1: and if it doesn't affect the outcome of the election,
Speaker 1: the court might not feel any urgency to take it
Speaker 1: up right now. And even if they did take it up,
Speaker 1: they might also look at it on a remedial side,
Speaker 1: to say, listen, if we told voters before election day,
Speaker 1: these votes need to come in by election day or
Speaker 1: won't count them, um, they're unnoticed. But after election day,
Speaker 1: where this rule had been in place at least in
Speaker 1: theory that if they are postmarked by election day and
Speaker 1: coming in the next three days, or if they come
Speaker 1: in the next three days without a postmark and we'll
Speaker 1: count them, um, you know, it's a little unfair to
Speaker 1: sort of pull the rug out from the from the voters.
Speaker 1: At that point when the Supreme Court swoops in later
Speaker 1: on and says, no, no, we're not going to count
Speaker 1: those ballots. Now, maybe they say you're unnoticed that there
Speaker 1: was litigation. Maybe you should have been a little bit
Speaker 1: more confident. But all this is to say, the Supreme
Speaker 1: Court could decide this case, you know, next year, if
Speaker 1: it wanted to. Just that the case has been brought
Speaker 1: up before the court. Um, it's not moot even after
Speaker 1: an election. Election law cases typically sort of a vaide
Speaker 1: muteness concerns by the Court saying, as long as you
Speaker 1: raised it, and we know that elections are sort of
Speaker 1: quick things, we can resolve this later. I keep referring
Speaker 1: back to a famous case called Anderson Dress the Celebrities,
Speaker 1: which involved John B. Anderson's campaign in nineteen eighty and
Speaker 1: the Court issued a decision in nineteen eight three. Right,
Speaker 1: hardly hardly a kimely decision. So we can think about
Speaker 1: the Court potentially wanted to. It has some academic interests
Speaker 1: that wants to provide legal guidance ahead of election. Um,
Speaker 1: but I think the odds of it deciding this case
Speaker 1: in a way that issues a judgment that not only
Speaker 1: affects the Trump campaign, but affects the Trump campaign. The
Speaker 1: way that alters the outcome of the Pennsylvania litigation is
Speaker 1: just exceedingly low. Thanks Derek. That's Derek Muller, professor at
Speaker 1: the University of Iowa College of Law. It's been three
Speaker 1: years since the eruption of the meat Too movement, and
Speaker 1: businesses are still revamping their workplace dating policies, sometimes turning
Speaker 1: to disclosure requirements that may make employees blush but don't
Speaker 1: violate privacy laws. Joining me is employment law expert Anthony
Speaker 1: on CD, a partner at Proscouer Rose. Let's start out
Speaker 1: with the main question. Do employers have the right to
Speaker 1: forbid relationships between employees because it sounds like a real
Speaker 1: intrusion into their private lives. Yeah, it may seem at
Speaker 1: first glance to be an intrusion into some kind of
Speaker 1: a private relation ship. But when there's a workplace romance,
Speaker 1: there are what I call fellow travelers that go along
Speaker 1: with the happy couple who might be involved in that relationship.
Speaker 1: And what do I mean by that, Well, the number
Speaker 1: one fellow traveler is the employer. If the boss is
Speaker 1: dating somebody who reports to him or her uh, and
Speaker 1: the relationship goes four as sometimes happens in that situation. UH,
Speaker 1: it is not unusual for the employee to claim that
Speaker 1: the boss has retaliated against that employee because of the
Speaker 1: relationship having gone sour, and may say that I no
Speaker 1: longer am getting the perks I was getting previously, I
Speaker 1: didn't get the bonus. Indeed, maybe and maybe the boss
Speaker 1: is on the verge of firing me. And in that situation,
Speaker 1: everybody starts calling lawyers. The HR department will start calling lawyers,
Speaker 1: the employee himself or herself will start calling lawyers, and
Speaker 1: suddenly what was a so called private relationship now is
Speaker 1: a very public relationship, at least within the four walls
Speaker 1: of the employer. And in that situation, suddenly everyone's looking
Speaker 1: at the employer as the deep pocket to make things right.
Speaker 1: So that's the number one fellow traveler in such a relationship,
Speaker 1: and almost always if it, if it goes badly, ends
Speaker 1: up in the lap of the employer. Another group of
Speaker 1: fellow travelers in such a relationship in the workplace are
Speaker 1: all the other employees who aren't dating the boss. It
Speaker 1: is almost always the case that if one employee is
Speaker 1: dating the boss and there are five or eight who
Speaker 1: are not, and this becomes common knowledge, as it so
Speaker 1: often does, whether it's water cooler talk or gossip, whatever,
Speaker 1: it often becomes knowledge that is known by other employees.
Speaker 1: It is I would say, certain, not even certain, but
Speaker 1: a hundred percent certain that everybody who isn't dating the
Speaker 1: boss is going to take the position, and that the
Speaker 1: employee who is dating the boss is receiving some form
Speaker 1: of preferential treatment. And even if that isn't happening, it's
Speaker 1: almost impossible to dispel that perception. And so no matter
Speaker 1: what happens, you've got again a fellow traveler in the relationship,
Speaker 1: which probably neither of the happy participants, at least at
Speaker 1: the beginning they were happy, may have anticipated. So how
Speaker 1: common our workplace dating policies? How long have they been
Speaker 1: in place? I would say they have risen exponentially in
Speaker 1: the last three to five years. Certainly since the Harvey
Speaker 1: Weinstein scandals broke in the me too movement began, things
Speaker 1: have very much accelerated in this regard. Employers have taken
Speaker 1: a more active role in monitoring and reporting and training employees.
Speaker 1: In connection with these kinds of things. I think maybe
Speaker 1: there was more of a propensity for employers who either
Speaker 1: look the other way or considered to be a private matter.
Speaker 1: Now because of, as I say, the fellow travelers that
Speaker 1: exist in such a relationship, Employers who are knowledgeable recognize
Speaker 1: that these are things that are potential liability centers and
Speaker 1: can be really problematic in the event that the relationship
Speaker 1: goes badly. One of the things that I always think
Speaker 1: about in terms of perspective is we know that marriages
Speaker 1: in the United States are destined for divorce. I don't
Speaker 1: know for sure what percentage of workplace romances will fail,
Speaker 1: but I would guess it's at least fifty And I
Speaker 1: also assume the number of failed workplace romances increases exponentially
Speaker 1: when one or both parties are married to other people,
Speaker 1: as is so often the cake so well. I hate
Speaker 1: to be um the non romantic in the conversation here,
Speaker 1: but when one enters into such a relationship in the
Speaker 1: workplace or anywhere, but certainly in the workingplace, the statistics
Speaker 1: are not in your favor that it's it's going to
Speaker 1: end well. And when you compare or a workplace romance
Speaker 1: to a non workplace romance. There's a lot more fallout
Speaker 1: in the workplace romance because once you have ceased being
Speaker 1: interested in the other person, or one person has feast
Speaker 1: being interested in the other person, it's much more difficult
Speaker 1: to terminate connections when you work six ft away from
Speaker 1: that person every day for eight to ten hours. And
Speaker 1: that is something obviously that doesn't occur in the outside workplace.
Speaker 1: There's a there's a term known as ghosting. You can
Speaker 1: people ghost one another. I guess it's a kind of
Speaker 1: a rude thing to do, but that happens. But you
Speaker 1: can't go to somebody who works in the next cubicle
Speaker 1: or in the next office, and certainly you can't go
Speaker 1: to somebody who happens to be your boss or even
Speaker 1: the person who reports to you. Do most companies require
Speaker 1: disclosure of a relationship or just forbid them out right. UH.
Speaker 1: That it comes in different flavors. Some employers differentiate between
Speaker 1: workplace romances that exists in a reporting relationship. That's actually
Speaker 1: the most dangerous area, both for the supervisor UH and
Speaker 1: also for the employer. Why is that Because when a
Speaker 1: supervisor act in connection with an employee that reports to
Speaker 1: him or her, the Company Act UH. The supervisor is
Speaker 1: essentially the embodiment of the company, and so if there
Speaker 1: is sexual harassment or alleged sexual harassment that occurs by
Speaker 1: a supervisor with respect to somebody who reports to that supervisor,
Speaker 1: the employer is strictly liable, meaning that even if the
Speaker 1: employer did not know there was a relationship, did not
Speaker 1: know there was any harassment going on, indeed may not
Speaker 1: have been able to find out. Perhaps the couple has
Speaker 1: done a very good job in keeping it under wraps
Speaker 1: and no circumstances. If the employee says he or she
Speaker 1: was sexually harasked, the employer and the supervisor are strictly
Speaker 1: liable in the event that harassment is proved. So employers
Speaker 1: that recognize this are much more interested in regulating and
Speaker 1: indeed often prohibiting a relationship between a supervised employee and
Speaker 1: the boss that that supervised employee reports. There's also the
Speaker 1: issue of co employees. This is often referred to as
Speaker 1: paramour liability, where you have other employees reporting to the
Speaker 1: same boss who have potential claims also who say that
Speaker 1: there's favorable treatment that is being showered upon the employee
Speaker 1: who happens to be having the relationship with the boss.
Speaker 1: There are also policies that employers have that regulate, often
Speaker 1: don't prohibit, but more closely regulate relationships between employees who
Speaker 1: are co employed, meaning that they're not no one's reporting
Speaker 1: to one another, no one's divorced, they may be in
Speaker 1: different departments. Employers are less concerned about that kind of
Speaker 1: a relationship because neither employee has the ability to affect
Speaker 1: the terms and conditions of employment of the other. That's
Speaker 1: where you get into trouble as an employer and as
Speaker 1: a supervisor when there is that potential for controlling the
Speaker 1: terms and conditions of employment. So that's workplace dating policies.
Speaker 1: Are there also contracts that an employee might be required
Speaker 1: to sign love contracts. Yeah, I would love to know
Speaker 1: who actually coined the term allowed contracts. It has so
Speaker 1: many different potential implications, but it is something that when
Speaker 1: you mentioned love contracts to an employment lawyers such as myself,
Speaker 1: we know exactly what that means and what those are
Speaker 1: are kind of ways in which employers are are grappling
Speaker 1: with the situation when it arises, and they often supplement
Speaker 1: a policy such as the one I mentioned, which is
Speaker 1: needed either prohibits dating between a supervisor and a support
Speaker 1: and employee, or obligates at the very least a disclosure
Speaker 1: of such a relationship. Um so before you get to
Speaker 1: love contract. Oftentimes for policies, as they say, either of
Speaker 1: bit a relationship with somebody who reports to the supervisor
Speaker 1: or requires that puts the onus on the supervisor to
Speaker 1: report such a relationship to Human resources or legal department
Speaker 1: or both. Why is that so that somebody who doesn't
Speaker 1: have a conflict of interest in HR or in the
Speaker 1: legal department can put eyes on this relationship and make
Speaker 1: a determination of whether uh, these two employee should continue
Speaker 1: to work in such close proximity and importantly, whether the
Speaker 1: subordinate employee should continue to report to the boss. Many employers,
Speaker 1: when they find out about, either directly or indirectly, a
Speaker 1: relationship between a supervisor and another employee, will move either
Speaker 1: the boss or the subordinate. But yet to be very
Speaker 1: careful with that as well, because the subordinate can't be
Speaker 1: put in a position where he or she has fewer
Speaker 1: job opportunities or where there's an adverse impact on they're
Speaker 1: on their career, because they may very well say that
Speaker 1: that somehow has retaliation or that's an extension of harassment
Speaker 1: if that's what they're alleging has occurred. So the employee
Speaker 1: has to be very very careful in making sure that
Speaker 1: the relationship is severed, that the work relationship is severed,
Speaker 1: so as to guard against potential liability, but also to
Speaker 1: make sure that it doesn't look as though the employee
Speaker 1: is being retaliated against in any way for having UM
Speaker 1: been in this relationship, or as I say, if it
Speaker 1: turns into harassment, especially in that situation. UM. A further
Speaker 1: extension beyond a policy just prohibiting having these relationships or
Speaker 1: obligating the supervisor to disclose is something called love contract.
Speaker 1: And what that does is it puts everything on the
Speaker 1: table and in writing, and it contains several common components.
Speaker 1: Number One, there is a requirement that they're be full
Speaker 1: disclosed by both the supervisor and the employee that a
Speaker 1: relationship is going on. One of the first components of
Speaker 1: a so called love contract is to remind both parties
Speaker 1: to the relationship, and particularly the employee who is reporting
Speaker 1: to the boss, that they are not compelled or obligated
Speaker 1: in any way to enter into or remain in the
Speaker 1: relationship that may seem like common sense, but what the
Speaker 1: love contract is intended to do is to guard against
Speaker 1: a future claim of harassment. So if at the very beginning,
Speaker 1: presumably when there's still a very good relationship between the couple,
Speaker 1: they both acknowledged this relationship is happening, and the employee
Speaker 1: who will be asked to sign a love contract acknowledges
Speaker 1: that if at any time, uh, he or she wishes
Speaker 1: to exit the relationship, the romantic relationship, they have a
Speaker 1: right to do so. Uh and that and it it
Speaker 1: also generally can firms that they will suffer no retaliation
Speaker 1: in terms of their job or their employment for making
Speaker 1: a decision to exit the relationship. So this is kind
Speaker 1: of a warning to the supervisor that if there's a breakup,
Speaker 1: do not retality against this employee when it comes to
Speaker 1: terms or conditions of employment. And it's a acknowledgement by
Speaker 1: the employee that if they wish to exit the relationship,
Speaker 1: they can do so and there will be no job
Speaker 1: related repercussion. So there are many stages of love, as
Speaker 1: you know, and I'm wondering how the employer draws the
Speaker 1: line or has the employees draw the line between you know, flirting, infatuation, romance,
Speaker 1: and relationship. Well. The good news is that much of
Speaker 1: the heavy lifting in this kind of situation is usually
Speaker 1: dealt with in a sexual harassment policy, and most well
Speaker 1: advised employers in the IT States now have some form
Speaker 1: of express harassment policy that that that actually gives examples
Speaker 1: and that describes what is or could be harassment and
Speaker 1: should be prohibited. Most sexual harassment policies differentiate between activities
Speaker 1: that are relatively harmless and those that are more severe
Speaker 1: or more pervasive, and those are those are important words
Speaker 1: when you are assessing whether there is harassment. Something is
Speaker 1: usually either severe in terms of the kind of activities
Speaker 1: that were engaged in. It may involve some form of
Speaker 1: touching or worse or pervasive meaning this has been a
Speaker 1: lot of um asking out or you know, comments about
Speaker 1: the way somebody addressed something like that. In the absence
Speaker 1: of severe or pervasive oftentimes it's hard for an employee
Speaker 1: to prove sexual harassment, but there are guide posts that
Speaker 1: are provided in most sexual harassment policy. And getting back
Speaker 1: to the love contract, it's usually very common to attach
Speaker 1: to the love contract itself a copy of the company's
Speaker 1: sexual harassment policy, so that again both the supervisor and
Speaker 1: the employee are made very much aware of what the
Speaker 1: policy is and indeed what the law is in connection
Speaker 1: with this, so that it's not just a piece of
Speaker 1: paper somewhere buried in the middle of a fifty or
Speaker 1: sixty page employ handbooks. It is attached to policy itself,
Speaker 1: to the love contract itself, so that both parties can
Speaker 1: see what the requirements are and what the expectations are
Speaker 1: from the employer. Thanks so much for being on The
Speaker 1: Bloomberg Lawn Show, Tony. That's employment law expert Anthony on
Speaker 1: cd A partnered Proscower Rose. And that's it for this
Speaker 1: edition of the Bloomberg Lawn Show. Remember you can always
Speaker 1: get the latest legal news on our Bloomberg Lawn Podcast.
Speaker 1: You can find them on iTunes, SoundCloud, or at Bloomberg
Speaker 1: dot com slash podcast, Slash Law. I'm June Grosso. Thanks
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