WEBVTT - Covid Vaccine Battles Erupt in Custody Cases 0:00:03.080 --> 0:00:08.280 You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 0:00:11.160 --> 0:00:13.760 Parents have had a lot to worry about during COVID, 0:00:14.120 --> 0:00:17.280 whether to get their children vaccinated, send them to school 0:00:17.520 --> 0:00:21.319 masked or unmasked. Those worries for parents can turn into 0:00:21.360 --> 0:00:25.439 a laundry list of conflicts for separated or divorced parents 0:00:25.480 --> 0:00:28.560 to fight about. Joining me is Lois Lieberman, a partner 0:00:28.560 --> 0:00:31.640 in the matrimonial and family law practice at Blank Rome. 0:00:32.320 --> 0:00:36.680 I want to start with vaccinations because it is such 0:00:36.720 --> 0:00:40.400 a big issue, such a political issue. How often does 0:00:40.440 --> 0:00:46.360 it come up in custody fights? Well before COVID occurred, 0:00:47.360 --> 0:00:51.680 the time that we would see vaccinations come up is 0:00:51.760 --> 0:00:56.920 when a parent became nervous thinking their child might be 0:00:57.480 --> 0:01:02.160 more prone to autism by virtue of vaccinations. Those were 0:01:02.320 --> 0:01:06.760 few and far between, but those occurred every once in 0:01:06.800 --> 0:01:10.000 a while, and and we would get into a situation 0:01:10.040 --> 0:01:14.000 if the school required a child to be vaccinated and 0:01:14.040 --> 0:01:17.720 the child was going to go to that school. Ultimately, 0:01:17.840 --> 0:01:21.920 the court would usually unless a pediatrician was going to 0:01:21.959 --> 0:01:25.760 come in to give some medical evidence as to why 0:01:25.959 --> 0:01:28.720 that child may be more prone, or there was some 0:01:28.880 --> 0:01:34.039 evidence regarding same, the court if in love would give 0:01:34.240 --> 0:01:38.680 the one parent medical decision making authority over that quote decision. 0:01:39.280 --> 0:01:45.840 We had some other custodial site regarding religious exemptions, but 0:01:46.040 --> 0:01:49.000 those changed a bit when it became I think there 0:01:49.080 --> 0:01:51.200 was a change in the public health law, which again 0:01:52.240 --> 0:01:55.720 the schools were requiring and we're not agreeing to this 0:01:55.840 --> 0:01:59.760 religious exemption. But COVID has opened up a whole new 0:02:00.080 --> 0:02:05.280 kind of hotbed of discussions with respect to vaccinating young children. 0:02:05.880 --> 0:02:09.680 So let's start with the basic the mother. Let's say 0:02:09.720 --> 0:02:12.880 the mother, the mother wants the child to be vaccinated, 0:02:12.919 --> 0:02:16.760 the father doesn't want the child to be vaccinated. Does 0:02:16.760 --> 0:02:19.399 the court usually get involved in that, and what kind 0:02:19.400 --> 0:02:23.240 of factors does the judge way? If the court gets involved, 0:02:23.320 --> 0:02:25.560 they're looking at the best interests of the child. That's 0:02:25.600 --> 0:02:29.320 what's supposed to be the basis upon the court's decision. 0:02:29.720 --> 0:02:32.600 And if mom wants to get the child vaccinated and 0:02:32.720 --> 0:02:35.720 dad doesn't, the court is going to want to delve 0:02:35.720 --> 0:02:40.480 into what's the reasoning behind dad not wanting the child 0:02:40.960 --> 0:02:46.400 to be vaccinated. So if we talk about COVID most recently, 0:02:46.520 --> 0:02:50.080 there was a decision in December that Judge Dollinger and 0:02:50.200 --> 0:02:53.680 Monroe County rendered. And this was a father who was 0:02:53.720 --> 0:02:57.799 a scientist, somebody who was a professor at Rochester Institute 0:02:57.840 --> 0:03:02.920 of Technology, who was vaccinated did himself. His older daughters 0:03:02.919 --> 0:03:06.320 were vaccinated, and all he wanted to do was to 0:03:06.400 --> 0:03:08.880 wait a bit since he was concerned about his eleven 0:03:08.960 --> 0:03:12.160 year old daughter being vaccinated, wanted to see a bit 0:03:12.200 --> 0:03:16.600 more data. In that particular decision, the court made a 0:03:16.639 --> 0:03:21.840 determination that that the CDC was recommending that the child 0:03:21.880 --> 0:03:25.800 should be vaccinated, and therefore there was no point of waiting, 0:03:26.000 --> 0:03:27.560 and that it was in the best interests of the 0:03:27.639 --> 0:03:32.400 child to become vaccinated, and therefore gave the mom the 0:03:32.480 --> 0:03:36.880 decision making authority to make that important decision for the 0:03:36.960 --> 0:03:41.840 child's health, safety and welfare. Do these decisions vary based 0:03:41.840 --> 0:03:44.560 on whether you're in a blue state where you know, 0:03:44.720 --> 0:03:48.760 vaccination rates are high and there's less political pressure to 0:03:48.840 --> 0:03:53.880 be unvaccinated, or in a red state where vaccination rates 0:03:53.880 --> 0:03:57.920 are low. You know, that's a very interesting question, June. 0:03:58.160 --> 0:04:02.200 I've seen decisions in Chicago, I've seen decisions in l 0:04:02.280 --> 0:04:04.920 a retrospect to this, so I can't tell you that 0:04:05.040 --> 0:04:09.160 in like West Virginia or in you know, Texas, whether 0:04:09.240 --> 0:04:13.800 or not this conflict, whether the judges are getting involved more, 0:04:14.240 --> 0:04:17.520 you know, as a political measure, because clearly you can 0:04:17.600 --> 0:04:21.480 see that there is a feeling that this is obviously 0:04:21.520 --> 0:04:24.479 decision is kind of politicized. What to a certain extent, 0:04:24.520 --> 0:04:28.320 you're kind of recognizing from the language in the decisions 0:04:28.600 --> 0:04:31.240 that the courts are going kind of beyond while I'm 0:04:31.279 --> 0:04:34.640 just following with the CDC says that's many jurists are 0:04:34.640 --> 0:04:37.400 getting kind of on their soapbox a bit to talk 0:04:37.440 --> 0:04:40.320 about the greater good or the need for us to 0:04:40.400 --> 0:04:44.960 all be able to commit to getting vaccinated, to blow 0:04:45.000 --> 0:04:47.680 back this pandemic, so to speak. But it's a really 0:04:47.760 --> 0:04:49.920 good question. So I can't tell you whether or not 0:04:50.279 --> 0:04:52.880 in the Red States are we seeing a difference of 0:04:52.960 --> 0:04:55.760 opinion which the respect to this conflict. Let's talk about 0:04:55.760 --> 0:05:01.520 the situation where the vaccinated parent one to stop visitation 0:05:01.839 --> 0:05:06.719 with the unvaccinated parent. How does that work? So what 0:05:06.760 --> 0:05:12.480 we're seeing is that the court is limiting and sometimes 0:05:12.520 --> 0:05:19.000 suspending the unvaccinated parents parental access under the guise of 0:05:19.080 --> 0:05:24.400 saying they are protecting the child's health, safety, and welfare. 0:05:24.880 --> 0:05:28.479 In the Chicago case, the jurist went so far as 0:05:28.480 --> 0:05:31.279 to say that parent had to be vaccinated. Yet in 0:05:31.400 --> 0:05:35.279 New York we've seen decisions where, while the judges language 0:05:35.320 --> 0:05:38.000 may have been a little bit more political, they basically said, 0:05:38.040 --> 0:05:40.520 you can see the kid if you take a test. 0:05:40.720 --> 0:05:43.480 Even if you don't want to get vaccinated, you need 0:05:43.520 --> 0:05:47.040 to take a negative COVID test to show that you 0:05:47.160 --> 0:05:52.280 are not going to potentially harm this child, especially when 0:05:52.320 --> 0:05:56.440 you're dealing with cases where the children are younger. Then 0:05:56.680 --> 0:06:01.080 they recommended vaccination status. In the case in again New 0:06:01.120 --> 0:06:04.920 York County Judge Cooper, the child was three, obviously couldn't 0:06:04.960 --> 0:06:08.120 be vaccinated, and gave the mother the right to limit 0:06:08.160 --> 0:06:11.800 the father's access, providing that unless he got vaccinated or 0:06:12.000 --> 0:06:15.320 submitted to a negative test. It is a difficult situation 0:06:15.360 --> 0:06:18.920 for parents because this is a new vaccine. I mean, 0:06:19.000 --> 0:06:22.960 the measles mom's rebella you already know, but this is new. 0:06:23.120 --> 0:06:24.960 So I can imagine that a lot of parents do 0:06:25.080 --> 0:06:29.440 have trepidation about getting their child vaccinated. And I think 0:06:29.520 --> 0:06:32.080 that's where we almost have gotten caught up in the 0:06:32.160 --> 0:06:35.400 wave of politicism, because normally with a kind of a 0:06:35.400 --> 0:06:39.159 new vaccine, a parent who wanted to wait or to 0:06:39.200 --> 0:06:41.680 get a little bit more data and to kind of 0:06:41.680 --> 0:06:46.640 sift through the noise of what people were saying, would 0:06:46.640 --> 0:06:49.599 potentially take a little bit more of a beat before 0:06:49.640 --> 0:06:54.080 making the decision to get their child vaccinated. But interestingly enough, 0:06:54.200 --> 0:06:57.560 by virtue of the fact that the BDC has made 0:06:57.600 --> 0:07:01.160 this recommendation, because the school, because there have been such 0:07:01.200 --> 0:07:04.800 a surge of children who became sick, especially in the 0:07:04.839 --> 0:07:10.040 omacrom variants in recent intens in September, there seems to 0:07:10.080 --> 0:07:13.760 be more of a, you know, an urgency that the 0:07:13.800 --> 0:07:16.720 court is feeling that it's the parent who said get 0:07:16.760 --> 0:07:19.720 the child back, and if the other parents says nowhere 0:07:19.760 --> 0:07:21.640 wants to wait, I'm going to let the parents who 0:07:21.680 --> 0:07:23.800 wants to get through child vacimate. I'm going to let 0:07:23.800 --> 0:07:26.440 them make the decision. I take it. When we had 0:07:26.480 --> 0:07:29.120 COVID lockdown, there were there were a lot more problems. 0:07:29.160 --> 0:07:33.080 What other kinds of problems about custody came up or 0:07:33.080 --> 0:07:36.800 about schooling, Wow, we had quite a bit. So let's go. 0:07:36.880 --> 0:07:40.280 Let's start. So first, you had just finish of schooling, right, 0:07:40.840 --> 0:07:44.680 especially in New York County where I practice, and there's 0:07:44.680 --> 0:07:47.080 a lot of children who are in private school. There 0:07:47.200 --> 0:07:49.800 was the choice certain schools gave the choices whether or 0:07:49.840 --> 0:07:52.760 not your child wanted to go remote or go in person. 0:07:53.120 --> 0:07:56.040 So we had issues between parents as to whether or 0:07:56.040 --> 0:07:58.320 not they wanted their kids to be in school or 0:07:58.520 --> 0:08:01.640 taking the classes remote, maybe because of the nervousness, maybe 0:08:01.640 --> 0:08:03.920 because of the concern that the child may have some 0:08:03.960 --> 0:08:07.480 sort of underlying health issue. The next issue had to 0:08:07.520 --> 0:08:10.560 do with just where the child if they went promote, 0:08:10.640 --> 0:08:13.520 right where the kids took their remote classes, right where 0:08:13.520 --> 0:08:17.640 they all in their houses, you know, their vacation homes, 0:08:17.800 --> 0:08:21.000 or they were somewhere different, and whether or not that 0:08:21.160 --> 0:08:25.120 impacted the other parents parental access because if they were 0:08:25.120 --> 0:08:28.880 doing you know, and every other day or every you know, Monday, Tuesday, Wednesday, 0:08:28.920 --> 0:08:31.480 Thursday schedule and one parent is in the city and 0:08:31.480 --> 0:08:34.040 the other parents is in you know, the Hampton's, that 0:08:34.120 --> 0:08:37.679 wasn't gonna work kind of situation. Gosh. We had issues 0:08:37.760 --> 0:08:40.600 with respect of just allowing kids to travel. I know 0:08:40.679 --> 0:08:43.120 of one case where whether or not they could fly 0:08:43.160 --> 0:08:46.760 out private or apply commercially, and what kind of precautions 0:08:46.880 --> 0:08:50.320 need to need it to be taken. We had issues 0:08:50.400 --> 0:08:52.920 of whether or not parents didn't want to give children 0:08:52.920 --> 0:08:54.920 over to the other parents because they didn't think that 0:08:55.000 --> 0:08:59.640 they were following protocols. I mean, sadly, COVID truly was 0:08:59.720 --> 0:09:02.400 like a hot set of issues that arose from that 0:09:02.920 --> 0:09:06.920 when you have parents who don't you agree. It provided 0:09:07.240 --> 0:09:10.679 a whole host of issues for parents to fight about 0:09:10.679 --> 0:09:13.160 and then per have judges to get involved in. How 0:09:13.200 --> 0:09:16.280 often do judges get involved in these kinds of decisions 0:09:16.360 --> 0:09:18.640 which it seems like they should be able to be 0:09:18.640 --> 0:09:22.280 solved between the parents. So a really good question, and 0:09:22.360 --> 0:09:25.960 I mean again, I can't tell you statistically, but unfortunately, 0:09:26.360 --> 0:09:31.320 when you have custodial issues where the court has to 0:09:31.320 --> 0:09:34.559 make a determination as to really which parents is better 0:09:34.600 --> 0:09:38.320 suited to make a decision, normally you don't have the 0:09:38.440 --> 0:09:41.880 kind of significant issues that arise. It's usually, well, who's 0:09:41.880 --> 0:09:43.640 going to make the best decision about where the kid 0:09:43.640 --> 0:09:45.960 goes to school and who's going to make a determination 0:09:46.000 --> 0:09:49.800 as to what kind of extracurricular activities. Very often, prior 0:09:49.920 --> 0:09:53.640 to COVID, the most significant medical issue we really dealt 0:09:53.679 --> 0:09:56.320 with when it came to having jurors having to intervene 0:09:56.320 --> 0:09:59.920 with if prescriptions about a d h D or whether 0:10:00.000 --> 0:10:04.240 a child actually had those problems and how to address 0:10:04.320 --> 0:10:07.440 them right very often. It was not uncommon if you 0:10:07.480 --> 0:10:09.800 had one parent who said, you know, my kid doesn't 0:10:09.800 --> 0:10:13.120 need to be medicated, and another parent saying, well, you know, 0:10:13.160 --> 0:10:15.920 the school was recommending, the psychiatrist is recommending, why not, 0:10:16.160 --> 0:10:18.520 and then courts had to get involved. But it would 0:10:18.559 --> 0:10:22.600 seem that it almost during this period of the last 0:10:22.600 --> 0:10:26.400 two years, it's almost as if people's anxieties have gotten 0:10:26.440 --> 0:10:30.239 even greater, and there seems to be even more situations 0:10:30.280 --> 0:10:32.560 where parties cannot agree and I just have to get 0:10:32.559 --> 0:10:35.840 involved in some way, which has been problematic because the 0:10:35.880 --> 0:10:39.480 court system has kind of been broken and really been 0:10:39.720 --> 0:10:44.240 so overloaded by virtue of the problems that COVID has caused. 0:10:44.320 --> 0:10:46.480 So a lot of parents have been in kind of 0:10:46.480 --> 0:10:49.000 no win situations where either you know, they haven't been 0:10:49.040 --> 0:10:52.080 able to get the attention for for some period of 0:10:52.120 --> 0:10:55.040 time courts, unless it was an emergency, you couldn't come in, 0:10:55.080 --> 0:10:57.920 and the question was what was an emergency? So um, 0:10:57.960 --> 0:11:00.920 and we're kind of still dealing with the ramifications the 0:11:00.920 --> 0:11:04.119 backload of all this. But you know, now the custodial 0:11:04.160 --> 0:11:06.720 issues are the first ones that are not really getting attention, 0:11:07.320 --> 0:11:09.959 so it depends, you know, So the question now is 0:11:10.000 --> 0:11:12.440 in the vaccination world. I think you're seeing a lot 0:11:12.480 --> 0:11:15.800 of litigation in all sorts of states. But really, if 0:11:15.840 --> 0:11:18.400 one was making a guess, most of the jurists are 0:11:18.400 --> 0:11:22.240 going to pick and say, if the CDC, if the 0:11:22.480 --> 0:11:26.080 FDA has approved that vaccine. I'm going to tell the 0:11:26.160 --> 0:11:28.400 parent who wants to get the child vaccinated that they 0:11:28.400 --> 0:11:31.840 are entitled to do so unless I get some medical 0:11:31.880 --> 0:11:34.760 professionals who's going to provide me a reason why that 0:11:34.840 --> 0:11:39.240 child shouldn't vaccinate. Let's switch to today's Valentine's Day. Does 0:11:39.280 --> 0:11:42.000 this mean there are a lot of engagements and are 0:11:42.040 --> 0:11:45.199 more people getting pre nups than in the past. Well, 0:11:45.320 --> 0:11:49.840 for sure. What we've seen June during this lockdown is 0:11:49.880 --> 0:11:53.920 that if there were fissures in a relationship, it definitely 0:11:54.000 --> 0:11:58.800 caused you know, major upheople. But those who were stuck 0:11:58.800 --> 0:12:01.480 together who really liked end up being together. We've seen 0:12:01.559 --> 0:12:05.760 a great influx of engagement and prenup. So we're definitely 0:12:05.760 --> 0:12:08.960 a prenup season usually around Valentine's Day. This is another 0:12:09.960 --> 0:12:13.440 search so to speak, of times when we see engagements 0:12:13.440 --> 0:12:16.040 and therefore we see a lot of prenups. I don't 0:12:16.040 --> 0:12:18.439 know if there's more prenups now than there has been. 0:12:18.520 --> 0:12:22.200 But we do a great deal of um of of 0:12:22.280 --> 0:12:27.400 prenups and those who have you know, assets, or if 0:12:27.400 --> 0:12:31.040 they've been in a relationship previously that broke up in divorce. 0:12:31.200 --> 0:12:33.800 It's clear that people are doing a lot of them. 0:12:33.880 --> 0:12:36.960 We have a great influx of of prenups right now 0:12:37.000 --> 0:12:40.080 in the last few weeks, and I'm sure as after 0:12:40.160 --> 0:12:42.240 today we're going to have even more. I mean, how 0:12:42.360 --> 0:12:44.040 much does it cost to get a prenup if you 0:12:44.080 --> 0:12:46.880 have I'm not talking about you know, the mega millions, 0:12:47.400 --> 0:12:51.920 but the average person. Again another great question, Not trying 0:12:51.920 --> 0:12:54.880 to be evasive, but lawyers are animals of time, right. 0:12:54.960 --> 0:12:59.319 We all build you know, per six minute increments, So 0:12:59.679 --> 0:13:02.320 if somebody takes a lot of time, they're calling us 0:13:02.360 --> 0:13:07.080 a great deal that we're basically doing therapy before the wedding. 0:13:07.280 --> 0:13:10.120 Freedups that should be simple are costing, you know, on 0:13:10.240 --> 0:13:13.319 godly thumps because we're spending a lot of time. Those 0:13:13.360 --> 0:13:16.839 who just want to make things simple, like what I 0:13:16.960 --> 0:13:21.160 come into the marriagement, what I inherit or gifted by 0:13:21.200 --> 0:13:25.360 my family, or that comes from trust distributions, those are 0:13:25.360 --> 0:13:27.319 going to be separate and everything else you know is 0:13:27.360 --> 0:13:29.360 going to be marital or you know, we'll deal with 0:13:29.440 --> 0:13:32.320 it based upon the law. Shouldn't cost a lot of money. 0:13:32.480 --> 0:13:35.840 It's just that, as you know, especially in my world, 0:13:36.040 --> 0:13:38.920 there's a lot of emotions that are layered in these 0:13:38.960 --> 0:13:42.319 decisions and in these negotiations, So it's not just those 0:13:42.360 --> 0:13:44.760 simple most of the time, and sometimes it takes a 0:13:44.800 --> 0:13:47.240 little bit more time to kind of flush out the 0:13:47.440 --> 0:13:50.319 issues and therefore costs a little bit more than one 0:13:50.320 --> 0:13:54.480 would have hoped. Thanks Lois, that's Lois Lieberman of Blank Rome. 0:13:56.320 --> 0:14:00.000 The US Senate delivered a major legislative victory for them 0:14:00.200 --> 0:14:03.760 two Movement, passing a bill in a by partisan voice 0:14:03.880 --> 0:14:07.680 vote that will end forced arbitration at companies for victims 0:14:07.679 --> 0:14:12.120 of sexual assault or harassment. Senator Kirsten Gillibrand of New 0:14:12.200 --> 0:14:14.679 York was one of the early sponsors of the bill. 0:14:15.160 --> 0:14:18.320 No longer will survivors of sexual assault or harassment in 0:14:18.320 --> 0:14:21.240 the workplace come forward and be told that they are 0:14:21.320 --> 0:14:24.640 legally forbidden to see their employer because somewhere buried in 0:14:24.680 --> 0:14:28.680 their employment contracts was this forced arbitration clause. The measure 0:14:28.680 --> 0:14:32.040 of freeze victims of workplace sexual harassment or assault to 0:14:32.120 --> 0:14:35.840 pursue lawsuits in court. Joining me is Anthony On cd CO, 0:14:35.960 --> 0:14:38.800 chair of the Labor and Employment Law Department at Prostcauer, 0:14:39.440 --> 0:14:42.720 describe for us the kinds of arbitration clauses that are 0:14:42.880 --> 0:14:48.640 often in employee's contracts. They're sometimes referred to as pre 0:14:48.840 --> 0:14:54.320 dispute arbitration provisions, and what that means is that they 0:14:54.360 --> 0:14:59.960 are documents that are usually given to employees and sometimes 0:15:00.000 --> 0:15:05.520 even applicants before they've begun employment. And essentially what they 0:15:05.600 --> 0:15:10.600 say is that any sort of dispute arises, or any 0:15:10.680 --> 0:15:14.000 claims arise. That is, if an employee has a claim 0:15:14.040 --> 0:15:18.080 against an employer, or employer has a claim against the employee, 0:15:18.720 --> 0:15:22.520 they both agree in advance that they will not go 0:15:22.640 --> 0:15:27.800 to court and that instead they will have their issue 0:15:27.920 --> 0:15:33.120 or claim resolved by an independent arbitrator, usually from one 0:15:33.120 --> 0:15:37.760 of the well known alternate dispute resolution entities, and there 0:15:37.760 --> 0:15:40.160 are three or four of them that are extremely well known. 0:15:40.800 --> 0:15:44.960 So now what does this new Act do? So this 0:15:45.360 --> 0:15:48.920 new Act that came out rather suddenly, I don't think 0:15:48.960 --> 0:15:51.640 there was a lot of warning. It passed the House 0:15:51.720 --> 0:15:57.280 and then almost instantaneously passed the Senate, and President Biden 0:15:57.360 --> 0:16:01.960 has already indicated that he will sign it. This act 0:16:02.240 --> 0:16:06.920 would essentially prohibit any such agreements that is pre dispute 0:16:07.000 --> 0:16:13.440 arbitration agreements that involves either sexual harassment or sexual assault 0:16:13.720 --> 0:16:16.640 in any of the states. So it's a federal law 0:16:16.760 --> 0:16:21.480 that will essentially lift all of those types of claims, 0:16:21.680 --> 0:16:26.600 that is, sexual harassment and sexual assault claims from arbitration 0:16:27.040 --> 0:16:31.200 and um put them into court at the option of 0:16:31.240 --> 0:16:34.280 the employee. By the way, that's not automatically done. It's 0:16:34.280 --> 0:16:38.000 something the employee will have the option to do. It 0:16:38.120 --> 0:16:43.160 was a bipartisan bill. It passed with a voice vote 0:16:43.280 --> 0:16:46.960 in the Senate. The sponsors of the bill say that 0:16:47.520 --> 0:16:52.720 it's important because workers are vulnerable and the disparity of power, 0:16:53.120 --> 0:16:57.960 and if you have arbitration, it's secretive. It's not in 0:16:57.960 --> 0:17:00.880 an open court room you can appea of the decision. 0:17:01.480 --> 0:17:04.119 So they say this is a really good thing for workers. 0:17:04.840 --> 0:17:07.280 That's true. I have a little bit more of a 0:17:07.320 --> 0:17:11.040 cynical view of that point of view, not necessarily from 0:17:11.080 --> 0:17:14.320 the people in Congress who voted for it, but from 0:17:14.400 --> 0:17:19.240 the plaintiff side lawyers who advocate laws like this, what 0:17:19.359 --> 0:17:22.480 they rarely say, but which they all are really quite 0:17:22.520 --> 0:17:26.680 aware of is that juries tend to be more sympathetic 0:17:27.080 --> 0:17:31.600 to employees full stop, regardless of what the claim is, 0:17:32.480 --> 0:17:39.320 and juries tend to give higher awards two employees than 0:17:39.400 --> 0:17:46.240 do arbitrators. And because of that, many, most, maybe all, 0:17:46.320 --> 0:17:50.680 plaintiff lawyers would prefer their cases to be heard by 0:17:50.800 --> 0:17:53.840 juries because they believe they're more likely to get a 0:17:54.000 --> 0:18:01.560 higher award. What about the allegations that arbitration clauses are 0:18:01.680 --> 0:18:06.800 in fine print in legal clauses, which employees aren't even 0:18:06.880 --> 0:18:09.119 aware of, so when they're signing, they don't know what 0:18:09.240 --> 0:18:13.520 they're signing. I think there's something to that. They're they're 0:18:13.520 --> 0:18:16.520 sometimes referred to in the law that hesion contracts, meaning 0:18:16.640 --> 0:18:22.199 that they are rarely negotiated, they're rarely specifically called out 0:18:22.280 --> 0:18:26.639 by the employer. There's usually very little, if any discussion 0:18:26.640 --> 0:18:30.480 about them. But I would also point out that the 0:18:30.520 --> 0:18:33.560 next time you go to the dentist, the next time 0:18:33.600 --> 0:18:36.320 you go to your doctor, the next time you go 0:18:36.560 --> 0:18:41.240 and park in many facilities in parking structures around the country, 0:18:41.520 --> 0:18:44.840 you will find that if you have a dispute with 0:18:44.920 --> 0:18:48.280 any or all of those entities, you also have waived 0:18:48.320 --> 0:18:52.359 your right to go to trial with a jury, and 0:18:52.440 --> 0:18:55.399 you will end up in arbitration. I would especially point 0:18:55.440 --> 0:18:59.000 that out with respect to medical providers. I probably signed 0:18:59.040 --> 0:19:04.880 dozens of these um arbitration provisions, as has everybody listening 0:19:04.880 --> 0:19:08.960 to this program. And there also has been no discussion 0:19:09.000 --> 0:19:11.679 about that. There's been no there's been no attempt to 0:19:12.720 --> 0:19:16.400 repeal those, and all the same reasons apply. Doctors don't 0:19:16.440 --> 0:19:19.600 want to be brought in front of juries, and they 0:19:19.640 --> 0:19:22.360 would rather in hospitals the same They would rather not 0:19:22.520 --> 0:19:27.800 have to defend claims like those that arise malpractice claims, 0:19:27.800 --> 0:19:30.720 for example, in front of juries. They'd rather be in 0:19:30.720 --> 0:19:34.199 front of arbitrators. So let me ask you this, as 0:19:34.280 --> 0:19:36.760 far as this bill, do you think that it will 0:19:36.840 --> 0:19:43.600 lead to more litigation, more settlements, higher settlements. What do 0:19:43.600 --> 0:19:45.560 you think the effect of it will be? If you 0:19:45.640 --> 0:19:49.280 define litigation as court litigations, then the answer would be yes. 0:19:49.520 --> 0:19:53.720 I think that what this essentially means is that employees 0:19:53.840 --> 0:19:58.359 with sexual harassment and sexual assault claims, and I believe 0:19:58.440 --> 0:20:03.760 fortunately sexual all claims are still relatively rare, they do occur, 0:20:03.880 --> 0:20:06.840 but it's sexual rasment claims are really quite frequently filed 0:20:07.680 --> 0:20:12.240 UM those will no longer be before an arbitrator, and 0:20:12.440 --> 0:20:15.080 that means that they will be filed. It doesn't mean 0:20:15.080 --> 0:20:16.760 that each and every one of them will go to trial. 0:20:16.840 --> 0:20:21.760 Many of them will, as your question suggests, end up 0:20:22.160 --> 0:20:27.800 getting settled. But importantly, because the case is pending in 0:20:27.920 --> 0:20:30.679 court or is threatened to be filed in court and 0:20:30.760 --> 0:20:34.199 cannot be sent to arbitration, the settlement values will go 0:20:34.320 --> 0:20:38.160 up significantly. I can tell you that many, many forms 0:20:38.200 --> 0:20:41.840 of litigation go through a process not as mediation, which 0:20:41.920 --> 0:20:45.280 is a again a voluntary process that the parties go through. 0:20:45.440 --> 0:20:49.360 We usually with a retired judge or retired practitioner and 0:20:49.560 --> 0:20:52.920 they try to settle the case. If the mediator knows 0:20:52.960 --> 0:20:56.760 that there's an arbitration provision that is likely to be enforced, 0:20:57.080 --> 0:21:00.360 that the case is usually settled for less money than 0:21:00.560 --> 0:21:04.359 if there is no mediation provision, because once again the 0:21:04.440 --> 0:21:09.200 threat of a jury is such that any potential award 0:21:09.920 --> 0:21:12.120 is going to be probably a lot higher. It's also 0:21:12.200 --> 0:21:15.119 a lot more expensive to defend the case on the 0:21:15.160 --> 0:21:18.000 part of the employer if it's pending in court, as 0:21:18.000 --> 0:21:21.440 opposed to in arbitration, where things tend to be more 0:21:21.520 --> 0:21:26.639 streamlined and there's less process. Typically, so from all you've said, 0:21:27.080 --> 0:21:31.680 it sounds like advocates for workers would say, yea, this 0:21:31.800 --> 0:21:35.119 is going to be to their benefit. Oh yes, this 0:21:35.200 --> 0:21:38.400 is bald holla for them. It's actually partial fall halla. 0:21:38.480 --> 0:21:41.240 I'll tell you what they really want. And I suspect 0:21:41.240 --> 0:21:44.000 now that this has happened, it may not be far 0:21:44.280 --> 0:21:50.160 from materializing. They want to have arbitration go away with 0:21:50.200 --> 0:21:54.040 respect not just the sexual harassment and sexual assault claims. 0:21:54.160 --> 0:21:57.320 They wanted to go away entirely with respect to all 0:21:57.400 --> 0:22:02.359 employment related claims. And I hesitate to make the famous 0:22:02.359 --> 0:22:05.439 slippery slope argument, but I think it truly does apply 0:22:05.800 --> 0:22:09.720 in this situation, because what this legislation does is that 0:22:10.040 --> 0:22:14.760 it suggests that there's something wrong with arbitration. That's how 0:22:14.880 --> 0:22:18.600 arbitration is inferior, at least with respect to the employee's 0:22:18.720 --> 0:22:23.200 rights to what the employee could expect in a court proceeding. So, now, 0:22:23.240 --> 0:22:26.920 what Congress has done has said, if you are sexually harassed, 0:22:27.200 --> 0:22:29.840 you no longer have to go to arbitration. You can 0:22:29.880 --> 0:22:32.320 go to court and you can have your day in court. 0:22:32.400 --> 0:22:35.320 As Senator Graham said, and many of the supporters said, 0:22:35.600 --> 0:22:40.600 what does Congress say that those employees who were harassed 0:22:41.160 --> 0:22:44.920 on the basis of their race. What does Congress say 0:22:44.960 --> 0:22:48.159 to those employees who were harassed on the basis of 0:22:48.200 --> 0:22:53.000 their age, or their disability, or their sexual orientation. Does 0:22:53.040 --> 0:22:56.399 Congress say they don't deserve their day in court? Also, 0:22:57.480 --> 0:23:02.159 because there's really no principal way to distinguish between the 0:23:02.200 --> 0:23:07.520 harassment that comes under the rubric of sexual harassment and 0:23:07.600 --> 0:23:11.320 harassment of any other form, all of which are equally 0:23:11.840 --> 0:23:15.400 abhorrent and all of which are equally illegal. So if 0:23:15.840 --> 0:23:21.200 Congress has decided to alleviate employees were sexually harassed from 0:23:21.240 --> 0:23:26.000 the obligation to go to arbitration, it's one short stop 0:23:26.040 --> 0:23:29.720 away from saying, well, actually, no one now who is 0:23:29.800 --> 0:23:33.720 claiming any form of illegal harassment under Title seven, for example, 0:23:34.320 --> 0:23:38.680 or the state equivalent, must go to arbitration and everyone 0:23:38.760 --> 0:23:41.320 can go to court. That, by the way, has been 0:23:41.359 --> 0:23:43.919 the path that most of the private companies that have 0:23:44.080 --> 0:23:48.480 gone down this road have taken. They started out after 0:23:48.520 --> 0:23:53.200 the Harvey Weinstein headlines with sexual harassment and soon realized 0:23:53.240 --> 0:23:57.720 there was no principal way of distinguishing between sexual harassment 0:23:57.840 --> 0:24:02.159 and other forms of illegal harassment, and then open the 0:24:02.200 --> 0:24:06.320 floodgates and said we will no longer enforce arbitration agreements 0:24:06.320 --> 0:24:09.960 with respect to any form of illegal harassment. Well, from 0:24:09.960 --> 0:24:15.000 what I understand, language was changed so that, for example, 0:24:15.080 --> 0:24:18.320 discrimination would be eliminated, so that the focus would only 0:24:18.359 --> 0:24:21.480 be on a sexual assault and harassment. So that was 0:24:22.240 --> 0:24:26.200 perhaps the reason why it got a voice vote in 0:24:26.200 --> 0:24:30.320 the Senate. Yes, you're you're correct about that, But harassment 0:24:30.400 --> 0:24:34.480 is different from from discrimination. So there are two further 0:24:34.520 --> 0:24:37.000 stuffs I guess down this line. One is the one 0:24:37.040 --> 0:24:40.840 I just mentioned, which is other forms of illegal harassment. 0:24:41.160 --> 0:24:43.800 Those are not included in this bill, and those still 0:24:43.840 --> 0:24:49.040 are subject to arbitration. Beyond that are forms of discrimination. 0:24:49.160 --> 0:24:53.880 But you can have discrimination based upon sex, you can 0:24:53.920 --> 0:24:58.440 have discrimination based upon race, you can have discrimination based 0:24:58.440 --> 0:25:03.639 on age, disability, sexual orientation. All of those are illegal also, 0:25:04.280 --> 0:25:07.680 and all of those remains subject to arbitration. It's a 0:25:07.800 --> 0:25:11.240 very difficult argument to make, certainly with respect to different 0:25:11.240 --> 0:25:15.280 forms of harassment, but even between harassment and discrimination, to 0:25:15.359 --> 0:25:19.200 say why some should be permitted to go to court 0:25:19.280 --> 0:25:25.800 and others must go too arbitration. It's also unclear what 0:25:25.840 --> 0:25:28.000 courts are going to do with the following scenario. What 0:25:28.119 --> 0:25:32.640