Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.
Speaker 1: The sound of March madness, it's the sound of money.
Speaker 1: For the n c double A. College sports is a
Speaker 1: billion dollar industry where the athletes play but don't get paid. Now,
Speaker 1: a legal memo from an unlikely source may change that.
Speaker 1: The top lawyer at the National Labor Relations Board says
Speaker 1: that athletes at private colleges qualify as employees under federal
Speaker 1: labor law and are entitled protection if they unionize. My
Speaker 1: guest is Audrey Anderson, who heads the higher education practice
Speaker 1: at Bassbarian SIMS. Audrey tell us a little about what
Speaker 1: the n LRB General Council Jennifer Bruzzo said in her
Speaker 1: memo release on Wednesday. Well, what she has said, June,
Speaker 1: is it from her perspective, certain college athletes are employees
Speaker 1: for purposes of the National Labor Relations Act or the
Speaker 1: n l r A, meaning that they have the right
Speaker 1: to organize, form a union, collectively, bargain strike, things like that.
Speaker 1: And she also went that step farther to say, if
Speaker 1: you call these people who play sports at a college,
Speaker 1: if you call them student athletes, as so many of
Speaker 1: us have done for so long you may be misclassifying
Speaker 1: them under the National Labor Relations Act, and she may
Speaker 1: in future cases take a position that that misclassification is
Speaker 1: a separate violation of the National Labor Relations Act. So
Speaker 1: there was a case in where Northwestern football players sought
Speaker 1: union representation and it was dismissed by the n LRB
Speaker 1: board by the Democratic majority board. So is it possible
Speaker 1: that the board won't agree with her on this? Yes,
Speaker 1: it is possible that the board will not agree with
Speaker 1: her on this. It's also possible that a court will
Speaker 1: not agree with her or with the board. So her
Speaker 1: pronouncement is certainly not the end of the matter. She
Speaker 1: does not get to say what the law is. All
Speaker 1: she can do is say this is the position that
Speaker 1: we are going to take in pursuing charges in labor
Speaker 1: relations disputes. So is the next step for unions to
Speaker 1: try to organize college players? Yes, the next step is
Speaker 1: for college players to try to unionize or to try
Speaker 1: to take other kinds of collective activity. And if they
Speaker 1: believe that their college or their conference is prohibiting them
Speaker 1: from taking collective activity, they could file a charge with
Speaker 1: the NLRB saying our right under the National Labor Relations
Speaker 1: Act have been violated. Now. It's also interesting in this
Speaker 1: memo that General Council also says that she is open
Speaker 1: to considering charges against a sports conference, including the n
Speaker 1: C double A. And that's interesting because public institutions are
Speaker 1: not governed by the National Labor Relations Act, so any
Speaker 1: state colleges and universities are governed instead by any state
Speaker 1: law that might exist around collective bargaining. However, most conferences
Speaker 1: have state institutions within them. It's almost that by saying, well,
Speaker 1: I look at anything that has to do with a
Speaker 1: conference as potential charge, she's also trying to get her
Speaker 1: fingers into the public institutions. If a college athlete at
Speaker 1: a public institution could somehow say that the action being
Speaker 1: taken against me is by virtue of a conference rule
Speaker 1: or an n double A rule, they could file a
Speaker 1: charge against their conference or the n double A. And
Speaker 1: this General Council is saying she'd at least take a
Speaker 1: look at that. Is she going out on a limb here.
Speaker 1: She's definitely trying to make new law, but that sometimes
Speaker 1: how the law changes in this area. And the National
Speaker 1: Labor Relations Board is known for being a more political agency,
Speaker 1: so the law there does change as administrations change, so
Speaker 1: that she's taking what might be thought of as a
Speaker 1: political position is not a news flash. People who practice
Speaker 1: labor law know that you go through these ebbs and
Speaker 1: flows with the change of an administration. The g C
Speaker 1: also mentions one Jealice's opinion in the recent Austin case.
Speaker 1: What I it was interesting in this memo is she
Speaker 1: picked out Justice Kavanaughs concurrence which he wrote only for himself,
Speaker 1: and then kind of a by the way fashion said that, well,
Speaker 1: maybe one way that college athletes and their colleges could
Speaker 1: come to terms with making the college athletes kind of
Speaker 1: whole for their contribution to the school is through collective bargaining.
Speaker 1: And Justice Kavanaugh, I think was not really thinking through
Speaker 1: all the ramifications of that when he wrote it. And
Speaker 1: here we have the General Council of the National Labor
Speaker 1: Relations Board saying, well, one justice of the Supreme Court
Speaker 1: thinks there should be collective bargaining, and therefore he must
Speaker 1: think that they are employees under the National Labor Relations Act.
Speaker 1: And you know, it's kind of unintended consequences of one
Speaker 1: justice is concurring opinion and kind of a throwaway line thanks, Audrey.
Speaker 1: That's Audrey Anderson of Bassbarian SIMS. And it's definitely a
Speaker 1: very time because we are in a kind of a
Speaker 1: final push to complete the the launch system State zero essentially.
Speaker 1: Tesla and SpaceX founder Elon Musk was celebrated last month
Speaker 1: after the historic inspiration for mission that sent four civilians
Speaker 1: deep into orbit. Not garnering nearly as much publicity was
Speaker 1: an achievement by one of Musk's former factory workers, forcing
Speaker 1: Tesla to fight in open court before a jury for
Speaker 1: the first time over allegations of racial discrimination on the
Speaker 1: assembly line. O N. Diaz says that he was repeatedly
Speaker 1: called the N word and other epithets, echoing allegations of
Speaker 1: racism at the Fremont plant that have dogged the electric
Speaker 1: carmaker for years. Joining me is employment law expert Anthony
Speaker 1: on cd, a partnered Proscauer Rose Tony, explain why it's
Speaker 1: so unusual for an employment claim against Tesla to make
Speaker 1: it to trial. The reason is that one of two
Speaker 1: things typically happen to a case like this. Number one
Speaker 1: employees in California at least, and elsewhere as well, often
Speaker 1: tend to be subject to arbitration agreements, which if they
Speaker 1: are the case is sent to arbitration and cannot proceed
Speaker 1: in court. Secondly, many cases end up settling. The likelihood
Speaker 1: of a case being settled is really quite great. In fact,
Speaker 1: upwards of cases they get filed and the courts end
Speaker 1: up at one point or another getting settled. Does the
Speaker 1: point if you have to show that there's a pattern
Speaker 1: of racial discrimination, No, I mean in some cases a fact,
Speaker 1: probably most cases where there are multiple instances of discrimination
Speaker 1: or harassment, the employee will try to get into the
Speaker 1: case something that's referred to as me too evidence, meaning
Speaker 1: that there are other employees, maybe some of them plaintiffs
Speaker 1: themselves or claimants, who have experienced similar actions, whether it
Speaker 1: be harassment or discrimination or whatever it may be in
Speaker 1: the workplace, because obviously having more than one person testifying
Speaker 1: about this tends to bolster the credibility of the employee,
Speaker 1: and credibility is a significant factor in all of these
Speaker 1: cases because in most cases, the employee will say he
Speaker 1: or she suffered from harassment or discrimination, the employer will
Speaker 1: deny it, and so the jury is going to be
Speaker 1: in a position of having to decide who's telling the truth.
Speaker 1: There have been years of complaints from black workers about
Speaker 1: the rampant use of racial slurs on the assembly line,
Speaker 1: that we're ignored by managers and graffiti and hate symbols.
Speaker 1: How does TESLA fight that, Well, the answer is, if
Speaker 1: that is true, that's a big problem for them in
Speaker 1: this case. There are a lot of allegations in this case,
Speaker 1: in in the prior case that we discussed about Tesla,
Speaker 1: that there were physical symbols, things such as swastikas and
Speaker 1: nooses and things like that in the workplace. I would
Speaker 1: expect there would be photos of that that would be
Speaker 1: shown to the jury, because we all know everyone now
Speaker 1: has a cell phone, everyone has a movie studio in
Speaker 1: their pocket basically, and I think that would be very
Speaker 1: compelling if those are credible photographs that the employer has
Speaker 1: some difficulty perhaps and we shooting because the employer is
Speaker 1: responsible for policing the environment. So we often talk about
Speaker 1: a hostile work environment or a toxic work environment. Those
Speaker 1: words get thrown around quite a bit in this kind
Speaker 1: of litigation. That's what we're talking about, whether it's comments
Speaker 1: that are made to an employee or physical manifestations in
Speaker 1: the form of drawings or uses or whatever. Horrible things
Speaker 1: being allowed there. Those are all things that would go
Speaker 1: into the environment, and that the employee is entitled to
Speaker 1: show to the jury and say this is the kind
Speaker 1: of environment I was working in. Now, I'm sure that
Speaker 1: TESLA is going to be very very very carefully looking
Speaker 1: at that evidence and testing it for veracity. Tesla denies
Speaker 1: the allegations and has set in court filings that it's
Speaker 1: taken prompt measures to correct unlawful behavior at its facility.
Speaker 1: So is it going to be a test of credibility
Speaker 1: between the employees and the managers who testify. Yes, And
Speaker 1: the legal standard for an environmental type case is whether
Speaker 1: the employer knew or should have known that this was
Speaker 1: going on. So it's not probably going to be a
Speaker 1: sufficiently airtight defense to say, well, we didn't actually know
Speaker 1: that there were newss and swastikas in this workplace. The
Speaker 1: test is going to be, well, did you know or
Speaker 1: should you have known as the employer under these circumstances
Speaker 1: or in this case, there was a contractual relationship with
Speaker 1: this employee as I understand it, and so actual knowledge
Speaker 1: is not necessarily in their type. In response to similar
Speaker 1: claims of racism by a former factory worker in must
Speaker 1: send this email to employees saying, if someone is a
Speaker 1: jerk to you but sincerely apologizes, it's important to be
Speaker 1: thick skinned and accept that apology. If you are part
Speaker 1: of a less represented group, you don't get a free
Speaker 1: pass on being a jerk yourself. We have had a
Speaker 1: few cases at Tesla where someone in a less represented
Speaker 1: group was actually given a job or promoted over more qualified,
Speaker 1: highly represented candidates and then decided to sue Tesla for
Speaker 1: millions of dollars because they felt they weren't promoted enough.
Speaker 1: That obviously is not cool. Do you think the jury
Speaker 1: will see that email? Yes? I mean I think there's
Speaker 1: a very good chance that there would be what's called
Speaker 1: emotion in limin a filed no doubt by Tesla, which
Speaker 1: would be to exclude that, and then the judge has
Speaker 1: to decide outside the presence of the jury whether to
Speaker 1: let something like that in based on what that says.
Speaker 1: It obviously could be quite prejudicial damaging to Tesla's case,
Speaker 1: and will come on as to why. But I think
Speaker 1: it's pretty self evident. Of course, the Plainett lawyer is
Speaker 1: going to try valiantly to get that in because it
Speaker 1: goes potentially to liability. It may go to damages, but
Speaker 1: so judge will make the determination as to whether it
Speaker 1: does or does not commit But I am sure that
Speaker 1: everyone is watching that email on the trial teams on
Speaker 1: both sides. That's Anthony on cd IF Pross Cower, Rose