1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:18,840 --> 00:00:22,320 Speaker 1: The sound of March madness, it's the sound of money. 3 00:00:22,360 --> 00:00:25,239 Speaker 1: For the n c double A. College sports is a 4 00:00:25,320 --> 00:00:30,560 Speaker 1: billion dollar industry where the athletes play but don't get paid. Now, 5 00:00:30,720 --> 00:00:34,720 Speaker 1: a legal memo from an unlikely source may change that. 6 00:00:35,080 --> 00:00:38,240 Speaker 1: The top lawyer at the National Labor Relations Board says 7 00:00:38,280 --> 00:00:43,080 Speaker 1: that athletes at private colleges qualify as employees under federal 8 00:00:43,159 --> 00:00:47,559 Speaker 1: labor law and are entitled protection if they unionize. My 9 00:00:47,680 --> 00:00:51,080 Speaker 1: guest is Audrey Anderson, who heads the higher education practice 10 00:00:51,120 --> 00:00:54,960 Speaker 1: at Bassbarian SIMS. Audrey tell us a little about what 11 00:00:55,160 --> 00:00:59,160 Speaker 1: the n LRB General Council Jennifer Bruzzo said in her 12 00:00:59,200 --> 00:01:03,960 Speaker 1: memo release on Wednesday. Well, what she has said, June, 13 00:01:04,000 --> 00:01:09,880 Speaker 1: is it from her perspective, certain college athletes are employees 14 00:01:10,360 --> 00:01:14,640 Speaker 1: for purposes of the National Labor Relations Act or the 15 00:01:14,800 --> 00:01:17,280 Speaker 1: n l r A, meaning that they have the right 16 00:01:17,440 --> 00:01:23,800 Speaker 1: to organize, form a union, collectively, bargain strike, things like that. 17 00:01:24,319 --> 00:01:26,959 Speaker 1: And she also went that step farther to say, if 18 00:01:27,000 --> 00:01:31,280 Speaker 1: you call these people who play sports at a college, 19 00:01:31,440 --> 00:01:34,280 Speaker 1: if you call them student athletes, as so many of 20 00:01:34,360 --> 00:01:37,760 Speaker 1: us have done for so long you may be misclassifying 21 00:01:37,840 --> 00:01:41,959 Speaker 1: them under the National Labor Relations Act, and she may 22 00:01:42,319 --> 00:01:48,040 Speaker 1: in future cases take a position that that misclassification is 23 00:01:48,080 --> 00:01:52,280 Speaker 1: a separate violation of the National Labor Relations Act. So 24 00:01:52,360 --> 00:01:58,400 Speaker 1: there was a case in where Northwestern football players sought 25 00:01:58,480 --> 00:02:03,360 Speaker 1: union representation and it was dismissed by the n LRB 26 00:02:03,840 --> 00:02:08,960 Speaker 1: board by the Democratic majority board. So is it possible 27 00:02:09,040 --> 00:02:12,280 Speaker 1: that the board won't agree with her on this? Yes, 28 00:02:12,520 --> 00:02:15,200 Speaker 1: it is possible that the board will not agree with 29 00:02:15,240 --> 00:02:18,360 Speaker 1: her on this. It's also possible that a court will 30 00:02:18,400 --> 00:02:22,120 Speaker 1: not agree with her or with the board. So her 31 00:02:22,440 --> 00:02:26,120 Speaker 1: pronouncement is certainly not the end of the matter. She 32 00:02:26,200 --> 00:02:29,640 Speaker 1: does not get to say what the law is. All 33 00:02:29,760 --> 00:02:32,880 Speaker 1: she can do is say this is the position that 34 00:02:33,280 --> 00:02:37,600 Speaker 1: we are going to take in pursuing charges in labor 35 00:02:37,680 --> 00:02:42,240 Speaker 1: relations disputes. So is the next step for unions to 36 00:02:42,360 --> 00:02:47,600 Speaker 1: try to organize college players? Yes, the next step is 37 00:02:47,680 --> 00:02:51,760 Speaker 1: for college players to try to unionize or to try 38 00:02:51,760 --> 00:02:56,560 Speaker 1: to take other kinds of collective activity. And if they 39 00:02:56,600 --> 00:03:01,760 Speaker 1: believe that their college or their conference is prohibiting them 40 00:03:01,880 --> 00:03:06,560 Speaker 1: from taking collective activity, they could file a charge with 41 00:03:06,680 --> 00:03:10,680 Speaker 1: the NLRB saying our right under the National Labor Relations 42 00:03:10,680 --> 00:03:14,120 Speaker 1: Act have been violated. Now. It's also interesting in this 43 00:03:14,240 --> 00:03:18,800 Speaker 1: memo that General Council also says that she is open 44 00:03:18,880 --> 00:03:23,880 Speaker 1: to considering charges against a sports conference, including the n 45 00:03:23,919 --> 00:03:29,120 Speaker 1: C double A. And that's interesting because public institutions are 46 00:03:29,160 --> 00:03:32,520 Speaker 1: not governed by the National Labor Relations Act, so any 47 00:03:32,600 --> 00:03:37,040 Speaker 1: state colleges and universities are governed instead by any state 48 00:03:37,160 --> 00:03:41,840 Speaker 1: law that might exist around collective bargaining. However, most conferences 49 00:03:42,040 --> 00:03:46,600 Speaker 1: have state institutions within them. It's almost that by saying, well, 50 00:03:46,720 --> 00:03:49,200 Speaker 1: I look at anything that has to do with a 51 00:03:49,280 --> 00:03:54,280 Speaker 1: conference as potential charge, she's also trying to get her 52 00:03:54,280 --> 00:03:59,280 Speaker 1: fingers into the public institutions. If a college athlete at 53 00:03:59,280 --> 00:04:04,000 Speaker 1: a public institution could somehow say that the action being 54 00:04:04,080 --> 00:04:08,160 Speaker 1: taken against me is by virtue of a conference rule 55 00:04:08,560 --> 00:04:11,200 Speaker 1: or an n double A rule, they could file a 56 00:04:11,320 --> 00:04:14,920 Speaker 1: charge against their conference or the n double A. And 57 00:04:14,960 --> 00:04:17,960 Speaker 1: this General Council is saying she'd at least take a 58 00:04:17,960 --> 00:04:20,800 Speaker 1: look at that. Is she going out on a limb here. 59 00:04:21,360 --> 00:04:25,120 Speaker 1: She's definitely trying to make new law, but that sometimes 60 00:04:25,160 --> 00:04:28,599 Speaker 1: how the law changes in this area. And the National 61 00:04:28,680 --> 00:04:34,080 Speaker 1: Labor Relations Board is known for being a more political agency, 62 00:04:34,240 --> 00:04:39,400 Speaker 1: so the law there does change as administrations change, so 63 00:04:39,880 --> 00:04:42,320 Speaker 1: that she's taking what might be thought of as a 64 00:04:42,360 --> 00:04:46,520 Speaker 1: political position is not a news flash. People who practice 65 00:04:46,880 --> 00:04:50,240 Speaker 1: labor law know that you go through these ebbs and 66 00:04:50,279 --> 00:04:53,680 Speaker 1: flows with the change of an administration. The g C 67 00:04:54,080 --> 00:04:59,000 Speaker 1: also mentions one Jealice's opinion in the recent Austin case. 68 00:04:59,480 --> 00:05:02,560 Speaker 1: What I it was interesting in this memo is she 69 00:05:02,839 --> 00:05:08,000 Speaker 1: picked out Justice Kavanaughs concurrence which he wrote only for himself, 70 00:05:08,320 --> 00:05:11,920 Speaker 1: and then kind of a by the way fashion said that, well, 71 00:05:12,040 --> 00:05:17,640 Speaker 1: maybe one way that college athletes and their colleges could 72 00:05:17,680 --> 00:05:21,960 Speaker 1: come to terms with making the college athletes kind of 73 00:05:22,040 --> 00:05:26,600 Speaker 1: whole for their contribution to the school is through collective bargaining. 74 00:05:26,960 --> 00:05:31,120 Speaker 1: And Justice Kavanaugh, I think was not really thinking through 75 00:05:31,279 --> 00:05:33,960 Speaker 1: all the ramifications of that when he wrote it. And 76 00:05:34,000 --> 00:05:36,160 Speaker 1: here we have the General Council of the National Labor 77 00:05:36,200 --> 00:05:38,920 Speaker 1: Relations Board saying, well, one justice of the Supreme Court 78 00:05:39,120 --> 00:05:42,320 Speaker 1: thinks there should be collective bargaining, and therefore he must 79 00:05:42,400 --> 00:05:45,760 Speaker 1: think that they are employees under the National Labor Relations Act. 80 00:05:45,800 --> 00:05:49,640 Speaker 1: And you know, it's kind of unintended consequences of one 81 00:05:49,800 --> 00:05:54,160 Speaker 1: justice is concurring opinion and kind of a throwaway line thanks, Audrey. 82 00:05:54,200 --> 00:05:59,400 Speaker 1: That's Audrey Anderson of Bassbarian SIMS. And it's definitely a 83 00:05:59,480 --> 00:06:02,480 Speaker 1: very time because we are in a kind of a 84 00:06:02,520 --> 00:06:08,920 Speaker 1: final push to complete the the launch system State zero essentially. 85 00:06:09,279 --> 00:06:13,359 Speaker 1: Tesla and SpaceX founder Elon Musk was celebrated last month 86 00:06:13,480 --> 00:06:18,160 Speaker 1: after the historic inspiration for mission that sent four civilians 87 00:06:18,200 --> 00:06:22,160 Speaker 1: deep into orbit. Not garnering nearly as much publicity was 88 00:06:22,200 --> 00:06:26,240 Speaker 1: an achievement by one of Musk's former factory workers, forcing 89 00:06:26,320 --> 00:06:29,720 Speaker 1: Tesla to fight in open court before a jury for 90 00:06:29,760 --> 00:06:33,400 Speaker 1: the first time over allegations of racial discrimination on the 91 00:06:33,440 --> 00:06:37,200 Speaker 1: assembly line. O N. Diaz says that he was repeatedly 92 00:06:37,320 --> 00:06:41,479 Speaker 1: called the N word and other epithets, echoing allegations of 93 00:06:41,600 --> 00:06:44,560 Speaker 1: racism at the Fremont plant that have dogged the electric 94 00:06:44,600 --> 00:06:48,480 Speaker 1: carmaker for years. Joining me is employment law expert Anthony 95 00:06:48,520 --> 00:06:52,520 Speaker 1: on cd, a partnered Proscauer Rose Tony, explain why it's 96 00:06:52,560 --> 00:06:56,480 Speaker 1: so unusual for an employment claim against Tesla to make 97 00:06:56,520 --> 00:06:59,599 Speaker 1: it to trial. The reason is that one of two 98 00:06:59,600 --> 00:07:03,280 Speaker 1: things typically happen to a case like this. Number one 99 00:07:03,680 --> 00:07:07,960 Speaker 1: employees in California at least, and elsewhere as well, often 100 00:07:08,000 --> 00:07:12,280 Speaker 1: tend to be subject to arbitration agreements, which if they 101 00:07:12,320 --> 00:07:17,000 Speaker 1: are the case is sent to arbitration and cannot proceed 102 00:07:17,320 --> 00:07:22,600 Speaker 1: in court. Secondly, many cases end up settling. The likelihood 103 00:07:22,680 --> 00:07:26,000 Speaker 1: of a case being settled is really quite great. In fact, 104 00:07:26,240 --> 00:07:29,960 Speaker 1: upwards of cases they get filed and the courts end 105 00:07:30,040 --> 00:07:32,720 Speaker 1: up at one point or another getting settled. Does the 106 00:07:32,760 --> 00:07:35,360 Speaker 1: point if you have to show that there's a pattern 107 00:07:35,400 --> 00:07:39,600 Speaker 1: of racial discrimination, No, I mean in some cases a fact, 108 00:07:39,800 --> 00:07:45,440 Speaker 1: probably most cases where there are multiple instances of discrimination 109 00:07:45,640 --> 00:07:49,040 Speaker 1: or harassment, the employee will try to get into the 110 00:07:49,040 --> 00:07:52,040 Speaker 1: case something that's referred to as me too evidence, meaning 111 00:07:52,480 --> 00:07:56,640 Speaker 1: that there are other employees, maybe some of them plaintiffs 112 00:07:56,680 --> 00:08:01,240 Speaker 1: themselves or claimants, who have experienced similar actions, whether it 113 00:08:01,280 --> 00:08:03,520 Speaker 1: be harassment or discrimination or whatever it may be in 114 00:08:03,560 --> 00:08:08,080 Speaker 1: the workplace, because obviously having more than one person testifying 115 00:08:08,120 --> 00:08:12,560 Speaker 1: about this tends to bolster the credibility of the employee, 116 00:08:12,680 --> 00:08:16,320 Speaker 1: and credibility is a significant factor in all of these 117 00:08:16,360 --> 00:08:19,560 Speaker 1: cases because in most cases, the employee will say he 118 00:08:19,640 --> 00:08:22,720 Speaker 1: or she suffered from harassment or discrimination, the employer will 119 00:08:22,760 --> 00:08:24,400 Speaker 1: deny it, and so the jury is going to be 120 00:08:24,440 --> 00:08:26,880 Speaker 1: in a position of having to decide who's telling the truth. 121 00:08:27,120 --> 00:08:31,000 Speaker 1: There have been years of complaints from black workers about 122 00:08:31,120 --> 00:08:34,600 Speaker 1: the rampant use of racial slurs on the assembly line, 123 00:08:34,960 --> 00:08:39,079 Speaker 1: that we're ignored by managers and graffiti and hate symbols. 124 00:08:39,360 --> 00:08:42,679 Speaker 1: How does TESLA fight that, Well, the answer is, if 125 00:08:42,720 --> 00:08:44,880 Speaker 1: that is true, that's a big problem for them in 126 00:08:44,880 --> 00:08:46,960 Speaker 1: this case. There are a lot of allegations in this case, 127 00:08:47,000 --> 00:08:49,280 Speaker 1: in in the prior case that we discussed about Tesla, 128 00:08:49,600 --> 00:08:53,080 Speaker 1: that there were physical symbols, things such as swastikas and 129 00:08:53,160 --> 00:08:55,520 Speaker 1: nooses and things like that in the workplace. I would 130 00:08:55,520 --> 00:08:58,559 Speaker 1: expect there would be photos of that that would be 131 00:08:58,600 --> 00:09:01,240 Speaker 1: shown to the jury, because we all know everyone now 132 00:09:01,280 --> 00:09:03,920 Speaker 1: has a cell phone, everyone has a movie studio in 133 00:09:03,920 --> 00:09:05,959 Speaker 1: their pocket basically, and I think that would be very 134 00:09:05,960 --> 00:09:09,600 Speaker 1: compelling if those are credible photographs that the employer has 135 00:09:09,640 --> 00:09:13,280 Speaker 1: some difficulty perhaps and we shooting because the employer is 136 00:09:13,320 --> 00:09:17,360 Speaker 1: responsible for policing the environment. So we often talk about 137 00:09:17,360 --> 00:09:20,280 Speaker 1: a hostile work environment or a toxic work environment. Those 138 00:09:20,280 --> 00:09:22,360 Speaker 1: words get thrown around quite a bit in this kind 139 00:09:22,440 --> 00:09:25,800 Speaker 1: of litigation. That's what we're talking about, whether it's comments 140 00:09:25,800 --> 00:09:29,320 Speaker 1: that are made to an employee or physical manifestations in 141 00:09:29,320 --> 00:09:32,520 Speaker 1: the form of drawings or uses or whatever. Horrible things 142 00:09:32,520 --> 00:09:34,640 Speaker 1: being allowed there. Those are all things that would go 143 00:09:34,679 --> 00:09:37,720 Speaker 1: into the environment, and that the employee is entitled to 144 00:09:38,120 --> 00:09:39,920 Speaker 1: show to the jury and say this is the kind 145 00:09:39,920 --> 00:09:42,600 Speaker 1: of environment I was working in. Now, I'm sure that 146 00:09:42,679 --> 00:09:45,439 Speaker 1: TESLA is going to be very very very carefully looking 147 00:09:45,440 --> 00:09:49,520 Speaker 1: at that evidence and testing it for veracity. Tesla denies 148 00:09:49,559 --> 00:09:52,760 Speaker 1: the allegations and has set in court filings that it's 149 00:09:52,800 --> 00:09:56,880 Speaker 1: taken prompt measures to correct unlawful behavior at its facility. 150 00:09:57,360 --> 00:10:00,280 Speaker 1: So is it going to be a test of credibility 151 00:10:00,320 --> 00:10:04,320 Speaker 1: between the employees and the managers who testify. Yes, And 152 00:10:04,400 --> 00:10:08,400 Speaker 1: the legal standard for an environmental type case is whether 153 00:10:08,440 --> 00:10:11,160 Speaker 1: the employer knew or should have known that this was 154 00:10:11,200 --> 00:10:13,040 Speaker 1: going on. So it's not probably going to be a 155 00:10:13,080 --> 00:10:16,920 Speaker 1: sufficiently airtight defense to say, well, we didn't actually know 156 00:10:17,520 --> 00:10:20,120 Speaker 1: that there were newss and swastikas in this workplace. The 157 00:10:20,160 --> 00:10:22,480 Speaker 1: test is going to be, well, did you know or 158 00:10:22,520 --> 00:10:26,160 Speaker 1: should you have known as the employer under these circumstances 159 00:10:26,200 --> 00:10:28,240 Speaker 1: or in this case, there was a contractual relationship with 160 00:10:28,280 --> 00:10:31,840 Speaker 1: this employee as I understand it, and so actual knowledge 161 00:10:31,880 --> 00:10:34,960 Speaker 1: is not necessarily in their type. In response to similar 162 00:10:35,000 --> 00:10:40,200 Speaker 1: claims of racism by a former factory worker in must 163 00:10:40,320 --> 00:10:43,599 Speaker 1: send this email to employees saying, if someone is a 164 00:10:43,679 --> 00:10:47,400 Speaker 1: jerk to you but sincerely apologizes, it's important to be 165 00:10:47,480 --> 00:10:50,559 Speaker 1: thick skinned and accept that apology. If you are part 166 00:10:50,600 --> 00:10:53,560 Speaker 1: of a less represented group, you don't get a free 167 00:10:53,559 --> 00:10:56,440 Speaker 1: pass on being a jerk yourself. We have had a 168 00:10:56,480 --> 00:10:59,600 Speaker 1: few cases at Tesla where someone in a less represented 169 00:10:59,640 --> 00:11:03,800 Speaker 1: group was actually given a job or promoted over more qualified, 170 00:11:03,880 --> 00:11:07,520 Speaker 1: highly represented candidates and then decided to sue Tesla for 171 00:11:07,640 --> 00:11:10,960 Speaker 1: millions of dollars because they felt they weren't promoted enough. 172 00:11:11,200 --> 00:11:14,480 Speaker 1: That obviously is not cool. Do you think the jury 173 00:11:14,520 --> 00:11:17,440 Speaker 1: will see that email? Yes? I mean I think there's 174 00:11:17,480 --> 00:11:20,440 Speaker 1: a very good chance that there would be what's called 175 00:11:20,440 --> 00:11:24,640 Speaker 1: emotion in limin a filed no doubt by Tesla, which 176 00:11:24,640 --> 00:11:27,960 Speaker 1: would be to exclude that, and then the judge has 177 00:11:28,000 --> 00:11:31,240 Speaker 1: to decide outside the presence of the jury whether to 178 00:11:31,320 --> 00:11:34,760 Speaker 1: let something like that in based on what that says. 179 00:11:34,880 --> 00:11:38,640 Speaker 1: It obviously could be quite prejudicial damaging to Tesla's case, 180 00:11:38,720 --> 00:11:40,120 Speaker 1: and will come on as to why. But I think 181 00:11:40,120 --> 00:11:42,200 Speaker 1: it's pretty self evident. Of course, the Plainett lawyer is 182 00:11:42,200 --> 00:11:44,760 Speaker 1: going to try valiantly to get that in because it 183 00:11:44,760 --> 00:11:47,959 Speaker 1: goes potentially to liability. It may go to damages, but 184 00:11:48,080 --> 00:11:50,960 Speaker 1: so judge will make the determination as to whether it 185 00:11:50,960 --> 00:11:53,080 Speaker 1: does or does not commit But I am sure that 186 00:11:53,160 --> 00:11:55,400 Speaker 1: everyone is watching that email on the trial teams on 187 00:11:55,440 --> 00:11:58,120 Speaker 1: both sides. That's Anthony on cd IF Pross Cower, Rose