You Can be Fired for Protesting in Most States

In general, what should employers be doing for workers at these times of social unrest, even if the workers are at home. Well, First of all, well, employers must recognize the tremendous trauma with the convergence of the COVID crisis, and I would say the structural racism crisis, said white America has finally learned and woken up to. I'm a

white person, so I'm saying that from my own perspective. Also, although I have been studying this field for many decades, but I think it's really important that employers, as corporate citizens, have to recognize what is going on in this tremendous inflection point in history and recognize that their own employees are being impacted by this trauma, particularly their employees of color, and so should they be reaching out to them? Should they be offering programs? You know, what should they do

to send a signal or to help? Yes, first of all, they should be reaching out um and uh. The employers and companies should be training their managers who are interacting with their line employees and say you must really reach out to them and don't just say how are you doing, but specifically ask how are you feeling? Is the COVID crisis impacting you right now? Is all the demonstrations in the streets and all the news impacting you right now? How can I help you? Do you need some type

of accommodation? That's one thing. Number two. I think that companies, many companies have employee system plans that allow for employee to reach out to a counselor to get counseling. But I think all companies really have to look at that programs are are they sufficient? Are they really addressing the

huge trauma, the psychological trauma that people are feeling. And we now know that the trauma is not just current, but it is intergenerational, particularly for communities of color and more specifically for the African American community because we're now beginning to understand that go back four hundred years from the Middle Passage of bringing enslaved people to this country, to the slavery period, to the Jim Crow period, to the period where the United States government and state governments

were providing benefits primarily to the white communities and discriminating against communities of color. So today we recognize that there is a tremendous disparity in wealth and an ownership, and it has created a tremendous amount of trauma in people of color. So now suppose someone says, you know, it's too much for me or I have to take care of my family. Can they get paid leave, paid medical leave,

or paid leave of any kind. Well, of course, you know, in terms of what statutory and legal programs are set up. There are some states where there is paid leaves. But to pay leaves is generally to take care of a family member or to take care of yourself. But but that's limited to a number, just a handful of states.

There is no national program. But what I'm advising employers now is to say, as a corporate citizen, this is a point in history where you have to really say, Okay, does this very important employee need some additional help, and can we provide paid leaves? And so I think companies really should look inward and say, yes, this is very important to do at this point and develop these programs. Companies won't be getting any assistance from this the states

or is it just dependent on your own insurance program? Well, a number of states and you're probably familiar with it during the COVID period now have said, okay, if you have a paid leave program for some employees but not

other employees, you must give it to a everybody. But generally, what this has really shown is that we really do need a paid leave program for all groups of workers, similar to what most other industrialized countries, certainly the European nations but also a number of Asian countries also have

been providing to their employees and to their citizens. And so the COVID crisis has really put forward in front of our eyes all the inequities where the so called essential workers that were we are now celebrating that they're helping those of us who have the privilege like myself to be able to work at home on computers and to continue getting my pay. And I have paid sickly

through through by employer. We are recognizing that many of these center workers, the lower wage workers, and mostly people of color, many immigrants, do not have these benfits, and so it's the time for us to re examine moving forward whether we want a society that is really living up to what the Constitution put forward in equality. Fool Coming up next? Can an employer fire you for engaging

in protests? I'm jun Brasso and this is the bird I've been talking to Professor marrickros Saying of the City University of New York School of Law about steps businesses are taking to support their workers during this time. How far behind other countries as far as workers rights in this area is the US? We are way behind other countries.

And if we just examine, you know, the countries that we have interacted with, that we trade with more the European Union countries that I'm not just talking about the Scandinavian countries. Many people will say, well, of course, Denmark, Sweden, Finland, Norway, they're different. They they've had a kind of social democracy. Um. But if we look at Germany, if we look at Spain, if we look at Italy, um, all these countries have

paid leaf programs. They differ somewhere, UM, but they they have many programs that benefit all of their employees much more than we do. And of course, if you look at the health statistics we have been even before the COVID crisis, we have been way behind between in terms of instant mortality rates and maternal mortality rates during the pregnancy and childbirth, we are way behind. So now let's turn to another concern in this area, and that is

so a lot of people are protesting. Can you be fired if your employer finds out you've been protesting peacefully and they don't like the look of it. There is no federal protection to people who are protesting legally, except if you are are a public employee because you have limited constitutional rights. But primarily the constitution does not apply

to private sector employees. There are a few states that have statutes that prohibit employers from disciplining workers for outside activity lawful outside activity, um, California, New York, New Jersey,

a few states, probably a few more. But this is something that I think that employers should look at very carefully and recognize that this is once again an inflection point in history where people are going out and demanding really structural changes not only at the workplace but throughout society.

And I think that it would be beneficial to companies to recognize that they should participate in trying to make these structural reforms so that their employees can be fully contributing employees and that we could all be part of the society that is moving to heal as opposed to the tremendous divisions that we have. So is there a difference if an employee, let's say, is arrested during a protest.

Does that make a difference even in those states that have laws about this, Well, you know generally those states would say we were talking about lawful activity. Um, But we have to be very careful about examining the arrest right now. First of all, there's a legal process that has to go through. And as we know that, there have been many instances of unlawful activity by the law

enforcement agencies. For instance, in an example in New York City in the Bronx last week, there was a peaceful demonstration and there were legal observice, lawyers and law students who were clearly at identified and the mayor's order to the law enforcement agency, the NYPD was these legal observers have a right to be looking at what's going on.

Ten of them were arrested. That's an unlawful arrest. But until the legal process goes on, and some of those lawyers might be working for different companies and they certainly should not be disciplined for that type of activity. There was an incident in Central Park that got a lot of publicity where a woman called police after an African American man asked her to put her dog on a leash, which is required in New York. She was fired. Is that kind of firing permissible? Can she appeal that? In

any way? It is permissible? What what she actually did might not be unlawful, although I noticed that the state legislatures new state legislature yesterday pass some legislation which would cause that type of activity be the wilful in the future. If you call nine one one and reports something that is not true, that that would be a violation. That's criminal law. It's not so clear that that was a violation, but there might have been a violation. But yes, an

employer could discipline and discharge that employee. That particular employer was concerned about their reputational harm with the publicity, uh, with this woman kind of being attached to them because her job and her employer were out there in the in the media. So I just wanted to sum this up. So, basically, workers who don't have contracts can be fired at will. So if an employer sees that you're involved in protest,

let's say, an employer can basically fire that worker. That is correct except in those, um, you know, few states where there are states attutes. However, I would think that it would behoove employers at this moment a profound change in American history to look at that very carefully and say, well,

maybe I actually will support the peaceful protests. The number of companies have actually indicated that they're going to make be making contributions to such organizations at the as the n a c T Legal Defense Funds, who are providing legal assistance to the protests and also providing assistance to to Congress and state legislatures, and in terms of trying

to reform various laws, particularly around law enforcement issues. I think it might be curious to some workers that what they do in their private time, that an employer has anything to say about what they do in their private time. Absolutely you know, most employees believe that they have certain First Amendment rights and that what they do out side of work, they can do along as it's lawful. However, the Constitution does not apply to private sector employees and

the employer. As you mentioned earlier, most employees of our employees will present. Unionized employees have certain protection, and some public employees have certain protections. But for the private sector employees who do not have contracts, and the only people who really have contracts of employment are high level management and executives. So all employees are employees at will, which means that employer can squire that employee for any reason whatsoever,

accept an unlawful reason. It could be a bad reason, is stupid reason and irrational reason, but unless it's unlawful by a law, there is no protection for that employee. Thanks Rick. That's Merrick Ross saying of the City University of New York School of Law. It turned some legal heads when two lawyers known for policing workplace discrimination during the Obama administration joined Morgan Lewis, a huge law firm

that often defends companies accused of violating workers rights. Bloomberg Law reporter Chris Offer talked to former Equal Employment Opportunity Commission member high Fell Bloom and her chief of staff, Sharon Massling, about leaving the plaintiff side of the labor and employment bar for their new roles as management side lawyers, and he joins me. Now, so Chris start by telling

us about their careers up to this point. So these are a pair of civil rights attorneys who have dedicated UH the last several decades of their career to workplace advocacy, largely on the workers side UM, focusing in particular on issues like disability rights UH, sex discrimination, and harassment in the workplace. UM. The pair of folks who are se in the democratic side of the aisle when it comes

to Capitol Hill. UH. Fell Bloom had started UM at the a c. L U as a lawyer working on legislative issues for their HIV AIDS project, went into academia and started a disability rights clinic, was heavily involved in efforts on Capitol Hill to pass legislation UH enacting gay rights UM, and then was tapped by former President Obama for a seat on the Equal Employment Opportunity Commission, where she served for two terms UH and was actually appointed

for a third term by President Trump because the e E s C has designated Democrat seats, so she was appointed by Trump to fill Um one of the Democrats teats there. Uh that appointment. That nomination was scuttled as a result of some misgivings by a small group of Republicans led by Senators Um, Mike Lee and Marco Rubio. Uh. Fell Bloom, of course, was the E s c s first openly gay member, UM and again was a champion

for some of the LGBT rights issues. UM and in a small group of Republicans UM were concerned, they said, about whether or not she could balance that advocacy with respect for employers religious rights. Um masling Um, who often is considered a sort of a sidekick for fell Bloom,

Uh is no slaps in her own rights. These are you know, Harvard and one trained lawyer, Um who worked on Capitol Hill on the Democratic side of the aisles and worked in the Justice Department Civil Rights Division working on disability rights issues before joining the E s C and serving as Fell Blooms chief of staff. UM and so once Um Sell blooms nomination with scuttle last year,

UH had to go looking for work and UM. What was surprising to some folks UM that has worked with them or know them was where they wound up going. UM gets It was late last year they announced that they were jumping ship and joining Morgan Lewis, which is one of these ships huge mega law firms. Morgan Lewis is known more as a defense firm. It's defended companies and even President Trump and his companies. So tell us a little bit about Morgan Lewis and what it stands for.

So this is a huge global law firm UM that gets a large share of this income from UM advising a wide range of companies and employment matters and also defending them in court when they're accused of all all sorts of things from labor violations and union busting to employment discrimination and harassment. UM. Recently they've been UM defending Amazon and some of the notable litigation going on over there with respect to the company's treatment of workers and

safety issues at Amazon facility. UM and so the firm also has been in the news recently because on the tax side that their tax practice represents President Trump and also the Trump organization in the wide range of the tax related issues UH stemming from uh, not only President Trump's UM refusal to release his tax his his personal UH income tax returns, but also some tax issues related

to the Trump organization at large. You spoke to a Chicago lawyer who was surprised by Felblum's career move, as I expect many other lawyers are as well. What did she say? Yeah, Brenda Faith actually had had done the opposite which UM she had defended UM large law frooms that I'm sorry large employers that take our shop before flipping to the plainist side to represent workers and discrimination

and related cases. And she and other attorneys that I spoke to on both sides of the political spectrum and on both sides of the UH labor management bar express some surprise, UM, just based on their experience having worked with Heelb women Massling and also being familiar with the body of work in their backgrounds in the issues they had focused on, that these two lawyers would jump ships and quote switch sides UM to a management firm known

for defending companies accused the violation. Stay right there, Chris, We're going to continue this conversation and coming up next on Bloomberg Law, how the coronavirus pandemic disrupted the plans of Fell Bloom and mass Ling at their new firm, and later why the Trump administration keeps losing in court by ignoring climate change. And remember you can get the latest legal news on our Bloomberg Law podcast. You can find them on iTunes, SoundCloud or at Bloomberg dot com,

slash podcast Slash Law. I'm June Grosso and this is Bloomberg. You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. I've been talking to Bloomberg Law reporter Chris Offer about two Obama civil rights lawyers switching signs. Chris, often we hear about lawyers who work their entire careers in government and at regulatory agencies, and then they make the switch to big law firms where they can command a lot of money because of their prior connections and prior experience.

So is this really that surprising? So when I closed to all Bloom and Masking, they certainly recognize that this would be a pay bump for them, and it is not out of the ordinary, generally speaking for official belief of them in service and to command um a high price tag. Often in these large corporate law firms. We've seen a lot of that out of the Obama administration since President Obama left office, but there is a in the labor unemployment space that it is uh an oddity.

UM are analysis show that she's sells Bloom, that is, is the first Democratic Commissioner to jump side after leaving the E s C in two decades UM. And what Publom and Measling said is that UM, in addition to the pay bump, UH, this is a situation that allows them to help companies do the right thing, to get in on the ground floor, to advise them on the front end, rather than defending them in court when they're

facing a lawsuit. And they're focusing in particular on what they call workplace culture UM, which is an issue that they spent a lot of time on that the E E s C, particularly in the harassment realm UH following the Harvey line seen uh a UM both of them looking at this idea that workplaces can enhance their culture and sort of combat some of the latent harassment discrimination

that may go on. UM. By actively managing that culture, I imagine they'll get a lot of clients who see them as sources of information about how the other side works. Absolutely if nothing else, you could see a client a company getting a letter from the e s C starting to ask questions about a particular case or allegation, UM, wanting to speak to people who are fresh off of working over there and have a really uh sort of insiders view as to how the agency works, how they

handle these cases, UM, and how they prosecute them. In addition to that, UM, again it's it's sort of this idea that UM, if you put in the time and effort and make the commitment to work with some of these attorneys to address some of these issues and nipped them in the bud, it may very well save you on the back end by keeping you out of court or at least limiting your liability on the back end. So when did they join Morgan Lewis? Uh? It was

right at the tail end of last year. So I want to say the announcement came out in this or of So then how has the pandemic affected their work? Right? So? UM, you know the Massing and Pelblem had planned to really focus on this advisory role, uh, particularly with respect to

discrimination and harassment and addressing workplace culture in that space. UM. But they told me they found themselves shifting like pretty much everyone else who practices labor and employment law UM to tackling a wide range of questions posed by the coronavirus.

Because both of them have a background and expertise and disability discrimination in particular, there UH they've been called on to UM taxle a wide range of questions related to UM testing employees for coronavirus, potentially testing employees for antibodies for the coronavirus, and a wide range of other issues related to the virus as companies start to think about opening their doors and potentially bringing workers back to the job and sell Bloom had a lot to do with

the Americans with Disabilities Act. She did, yes, And I for one, UM would have guests that Congress UH thirty years ago when they passed the Americans with Disabilities Act, had no idea that any sort of pandemic the likes of coronavirus would be striking us now here three decades later. But what fell Bloom and Maslin said UM was that actually it strikes a very similar chord to a lot of the discussions that they had had regarding the HIV aid UM pandemic at the time the epidemics UM which

was really piking. We're talking about the late eighties, early nineties UM. And and it was interesting what Felblum, who was working as an A C. L U lawyer at the time and was up on Capitol Hill advising them, particularly about HIV eight issues, said, UM, is that some of the language that's being used now to address the coronavirus UH is language that was written into the Act

to address concerns from lawmakers regarding HIV eight. In your story, you discuss the question that employers are facing about whether an employee poses a direct threat tell us about that. That's right, it's a complicated analysis. The direct threat UM analysis comes into play with employees who do not have the virus but may have some underlying medical condition that makes them particularly susceptible UM to you know, a really bad bout of the virus or or maybe even death

if they contract the viry. And the question is what can employees do and I'm sorry, what can employers do in those situations in regards to bringing those employees back into the workplace knowing that they may be particularly susceptible. And so what was written into the A. D. A UH to deal with the hiv A virus was this

direct threat language. And what it says is that UH an employer making those kinds of decisions has to look at every employee individually, has to look at what sort of reasonable accommodations can be made um to protect that employee on the job UM, and then based on those reasonable accommodations, whether or not the employee would still constitute quote a direct threat either to the employee themselves or

to their co workers. And if the answer is yes, there is a direct threat there, then the company can say we're not going to bring you back to the job right now. But they have to go through that whole uh you know, sort of comp like legal analysis before making that decision. So finally, Chris, did either of them tell you about any backlash they may have gotten

from fellow lawyers about going to the other side. Not a lot, they acknowledged, maybe a couple of eyebrows rates here and there at toptail parties and that kind of thing. But um, you know, the labor and employment bar is a fairly narrow universe, and uh, you know, these people like to or try their best to play well together even when they're on opposing sides in the courtroom um or at the negotiating tables. So not a ton of that,

particularly knowing you know who knows down the road. In a future democratic administration, you could see both fell bloom and Massling back in some sort of leadership role, whether that's at the sc or elsewhere. Thanks Chris. That's Chris Offer. He's the Bloomberg Law team leader for the business of law. Coming up next to Bloomberg Law. Why the Trump administration keeps losing in court by ignoring climate change. I'm June Brasso and this is Luberg