This is Bloomberg Law with June Grosso from Bloomberg Radio. What I'm really concerned about though, is could we legally retrieve our embryos.

This is Bloomberg Law with June Grosso from Bloomberg Radio. What I'm really concerned about though, is could we legally retrieve our embryos.

There's mostly concern, there's worry, there's some anger.

There's mostly concern, there's worry, there's some anger.

This is Bloomberg Law with June Grosso from Bloomberg Radio.

This is Bloomberg Law with June Grosso from Bloomberg Radio.

What I'm really concerned about though, is could we legally retrieve our embryos. There's mostly concern, there's worry, there's some anger as patients and physicians want to be able to make these decisions together, collaboratively and not have these decisions made for us and without our input.

What I'm really concerned about though, is could we legally retrieve our embryos. There's mostly concern, there's worry, there's some anger as patients and physicians want to be able to make these decisions together, collaboratively and not have these decisions made for us and without our input.

Doctors and IVF patients are caught up in a mixture of emotions and a lot of confusion after the Alibamma Supreme Court's unprecedented decision that frozen embryos are children. The decision means doctors like Mamy MacLean could now face criminal charges or punitive damages if they discard unused frozen embryos, which is a normal part of the iv process.

Doctors and IVF patients are caught up in a mixture of emotions and a lot of confusion after the Alibamma Supreme Court's unprecedented decision that frozen embryos are children. The decision means doctors like Mamy MacLean could now face criminal charges or punitive damages if they discard unused frozen embryos, which is a normal part of the iv process.

This ruling is so incomplete, and it leaves those of us who are sitting face to face with patients just with the inability to comment on what is safe and what is legal for them Right.

This ruling is so incomplete, and it leaves those of us who are sitting face to face with patients just with the inability to comment on what is safe and what is legal for them Right.

Now, Alabama's largest hospital and several fertility clinics are pausing in vitro fertilization treatments because of legal concerns, and patients like Matt Clary and his wife are in limbo. They'd plan to go through another round of IVF this summer, but are now unsure whether it will be available.

Now, Alabama's largest hospital and several fertility clinics are pausing in vitro fertilization treatments because of legal concerns, and patients like Matt Clary and his wife are in limbo. They'd plan to go through another round of IVF this summer, but are now unsure whether it will be available.

Nobody has the answers of how do you navigate this?

Nobody has the answers of how do you navigate this?

Joining me is healthcare attorney Harry Nelson of Nelson Hardiman Harry. The Alabama Supreme Court is the first court to rule so that frozen embryos are children, citing anti abortion language in Alabama's constitution. But the facts of this case are rather odd.

Joining me is healthcare attorney Harry Nelson of Nelson Hardiman Harry. The Alabama Supreme Court is the first court to rule so that frozen embryos are children, citing anti abortion language in Alabama's constitution. But the facts of this case are rather odd.

It appears that this decision was the result of a very calculated case. The case involved two families who had had children through a fertility center and had additional embryos stored at the center. Those embryos were destroyed in a bizarre incident where another patient apparently walked into an unauthorized area, opened a freezer, pulled out the storage container with the embryos. The suffered immediate freezer burn and dropped the container, resulting in the destruction, and so it doesn't seem obvious at least to me that the natural response of someone who had hoped to use an embryo for a future in vitro fertilization would be, you know, to sue for wrongful death of a minor. Right, yea, certainly people would be aggrieved. But it certainly seems there's a calculated decision to bring a case under this law. Law and challenged the destruction to use this incident to test whether the loss of an embryo in this manner could somehow be considered the same as the death of a child. So that was the legal theory they went forward on, and they lost in the lower court, And then the Alabama Supreme Court surprised most people by agreeing with the theory that the parent who lost these embryos alleged, or that their lawyer's alleged, which was that the accidental destruction of the embryos in an embryo lab, I mean, a fertility center was the legal equivalent of killing their children, that an embryo being stored in this lab a fertilized embryo, which, according to the testimony, was an equivalent of a few days old into the pregnancy process, but less than a week that that was the same as a fully born child who had been killed. You know, it's an extreme position and it raises all kinds of troubling implications for anybody who is involved at all in the process of extracting, storing, implanting embryos, handling them in any way. The simple meaning of this case is that you are potentially, if anything happens to these embryos, you are effectively committing the equivalent of a homicide or a manslaughter of a child.

It appears that this decision was the result of a very calculated case. The case involved two families who had had children through a fertility center and had additional embryos stored at the center. Those embryos were destroyed in a bizarre incident where another patient apparently walked into an unauthorized area, opened a freezer, pulled out the storage container with the embryos. The suffered immediate freezer burn and dropped the container, resulting in the destruction, and so it doesn't seem obvious at least to me that the natural response of someone who had hoped to use an embryo for a future in vitro fertilization would be, you know, to sue for wrongful death of a minor. Right, yea, certainly people would be aggrieved. But it certainly seems there's a calculated decision to bring a case under this law. Law and challenged the destruction to use this incident to test whether the loss of an embryo in this manner could somehow be considered the same as the death of a child. So that was the legal theory they went forward on, and they lost in the lower court, And then the Alabama Supreme Court surprised most people by agreeing with the theory that the parent who lost these embryos alleged, or that their lawyer's alleged, which was that the accidental destruction of the embryos in an embryo lab, I mean, a fertility center was the legal equivalent of killing their children, that an embryo being stored in this lab a fertilized embryo, which, according to the testimony, was an equivalent of a few days old into the pregnancy process, but less than a week that that was the same as a fully born child who had been killed. You know, it's an extreme position and it raises all kinds of troubling implications for anybody who is involved at all in the process of extracting, storing, implanting embryos, handling them in any way. The simple meaning of this case is that you are potentially, if anything happens to these embryos, you are effectively committing the equivalent of a homicide or a manslaughter of a child.

The common practice with a patient undergoing IVF, multiple embryos are created right so that the patient can try again if an attempt at pregnancy fail. So what kind of problem does a decision like this create, right?

The common practice with a patient undergoing IVF, multiple embryos are created right so that the patient can try again if an attempt at pregnancy fail. So what kind of problem does a decision like this create, right?

You know, it's a difficult procedure in which there's no certainty that a single embryo will implant. In fact, if you go back just twenty years ago, prior to the octomom case, it was common practice for many fertility doctors to implant the significantly larger numbers of embryos to see which ones would succeed. And it's still a common practice to implant smaller numbers of multiple embryos, which is one of the reasons we see a lot more twins resulting from IVF. The problem now is that, based on the case, the handling of those embryos is effectively the handling of live children. I don't know, between the age of one day old newborn to seventeen year olds. Those embryos have the same legal status as those children. And these are embryos that are in the hands of labs, doctors, hospitals, surgery centers, and really a world of new questions of what their responsibilities are, Like what happens if the power goes off and there's a destruction that way, What happens if they aren't used and they're simply sitting there is there any consequence if they're no longer usable, What happens if there's a dispute between the parents? What is their status? They are no longer property, they are live right. So this is a radical new legal world that we've entered with this decision.

You know, it's a difficult procedure in which there's no certainty that a single embryo will implant. In fact, if you go back just twenty years ago, prior to the octomom case, it was common practice for many fertility doctors to implant the significantly larger numbers of embryos to see which ones would succeed. And it's still a common practice to implant smaller numbers of multiple embryos, which is one of the reasons we see a lot more twins resulting from IVF. The problem now is that, based on the case, the handling of those embryos is effectively the handling of live children. I don't know, between the age of one day old newborn to seventeen year olds. Those embryos have the same legal status as those children. And these are embryos that are in the hands of labs, doctors, hospitals, surgery centers, and really a world of new questions of what their responsibilities are, Like what happens if the power goes off and there's a destruction that way, What happens if they aren't used and they're simply sitting there is there any consequence if they're no longer usable, What happens if there's a dispute between the parents? What is their status? They are no longer property, they are live right. So this is a radical new legal world that we've entered with this decision.

Usually the parents have the right to decide what happens to embryos that are not used.

Usually the parents have the right to decide what happens to embryos that are not used.

Correct until now and in every other state, embryos are effectively property. The parents have full discretion over what to do with them. Parents can decide if they don't want to pursue further privs, and there were remaining embryos, they could simply demand that they be destroyed, and they would be destroyed like any other kind of tissue in a lab, right, And it's not that they would have hero value, but they would not have the value accorded under Alabama law to a life, and they would not be facing the dire consequences of having essentially taken a life by the negligence of allowing a patient a third party to get into the facility. So all kinds of really scary implications about what this new status means.

Correct until now and in every other state, embryos are effectively property. The parents have full discretion over what to do with them. Parents can decide if they don't want to pursue further privs, and there were remaining embryos, they could simply demand that they be destroyed, and they would be destroyed like any other kind of tissue in a lab, right, And it's not that they would have hero value, but they would not have the value accorded under Alabama law to a life, and they would not be facing the dire consequences of having essentially taken a life by the negligence of allowing a patient a third party to get into the facility. So all kinds of really scary implications about what this new status means.

Also, can you do genetic testing on embryos?

Also, can you do genetic testing on embryos?

Then the question of whether you can do genetic testing or what you can do to these embryos short of destroying them is a really interesting question. There's nothing in this decision that suggests that you couldn't do genetic testing. However, any time that you have any kind of contact with, you know, embryonic tissue, you are effectively potentially taking a risk. Right, there is a risk that the extraction, even though it's often done safely. I think doctor's rul routinely tell patients, there is a chance that this will result in destruction. So I think genetic testing just became in this context, became basically off limits in Alabama because it could result in the destruction of a tissue and therefore essentially a killing.

Then the question of whether you can do genetic testing or what you can do to these embryos short of destroying them is a really interesting question. There's nothing in this decision that suggests that you couldn't do genetic testing. However, any time that you have any kind of contact with, you know, embryonic tissue, you are effectively potentially taking a risk. Right, there is a risk that the extraction, even though it's often done safely. I think doctor's rul routinely tell patients, there is a chance that this will result in destruction. So I think genetic testing just became in this context, became basically off limits in Alabama because it could result in the destruction of a tissue and therefore essentially a killing.

And this is a decision where the court hands down this radical decision and then just says, Okay, we're done, and the implications are left to I don't know, the medical profession, patience, the legislature who.

And this is a decision where the court hands down this radical decision and then just says, Okay, we're done, and the implications are left to I don't know, the medical profession, patience, the legislature who.

Decides yeah, it's you know, this decision in many ways reminds me it sort of parallels the DA decision itself, which revealed Roe v. Wade in the sense that the Supreme Court said, we'reishing this proclamation that rowan too far, and we're kicking it back to the states to this and there was this almost like assumption that the problem would just sort itself out at the state level, and in fact, we've gotten a result of national chaos over the last nearly two years. And this decision does exactly the same thing in this smaller context of IVF and Alabama and embryos, because it's created a world of chaos where all these different actors parents who are considering IVF and fertility treatment, fertility doctors, hospitals, health systems, medical school training programs, storage companies. Everybody's got to make these new decisions, and there will certainly be new regulations, but there's a lot of personal decisions just to sort of avoid this whole uncertain, chaotic environment in favor of going to states where this is totally uncontroversial territory, Harry.

Decides yeah, it's you know, this decision in many ways reminds me it sort of parallels the DA decision itself, which revealed Roe v. Wade in the sense that the Supreme Court said, we'reishing this proclamation that rowan too far, and we're kicking it back to the states to this and there was this almost like assumption that the problem would just sort itself out at the state level, and in fact, we've gotten a result of national chaos over the last nearly two years. And this decision does exactly the same thing in this smaller context of IVF and Alabama and embryos, because it's created a world of chaos where all these different actors parents who are considering IVF and fertility treatment, fertility doctors, hospitals, health systems, medical school training programs, storage companies. Everybody's got to make these new decisions, and there will certainly be new regulations, but there's a lot of personal decisions just to sort of avoid this whole uncertain, chaotic environment in favor of going to states where this is totally uncontroversial territory, Harry.

Some doctors are saying that patients because of this could have to endure longer and more costly treatments to try to achieve a pregnancy if they're only allowed to create one embryo per cycle, and one cycle of IVF now calls about fifteen to twenty five thousand dollars. Tell us a little about the process.

Some doctors are saying that patients because of this could have to endure longer and more costly treatments to try to achieve a pregnancy if they're only allowed to create one embryo per cycle, and one cycle of IVF now calls about fifteen to twenty five thousand dollars. Tell us a little about the process.

The process, if you speak to any woman who's had it, or couples that have gone through it, is it's quite an intensive process to prepare for it, for the extraction of the eggs, and then essentially the fertilization of the sperm and egg happened in the lab, and then once there's confirmed fertilization and just a little bit of growth of the embryo, it is then implanted. And you know, there's a question of whether the women's uterusm will accept the tissue and whether it will attach appropriately, and then there continue to be questions and a risk of unsuccessful implantation or miscarriage is a very significant risk. This is an amazing miracle of reproductive health technology that's a dance fertility, and in recent decades that's made this a possibility. But I'd personally know multiple couples that have had to go through round after round of this procedure, and that was with implanting multiple embryos just to get to success full pregnancy. And so basically this has eliminated the possibility of more than one embryo being implanted, and it means that the odds of each treatment of each IVF attempt are now reduced. If you do it in Alabama, where you certainly can't do more than one embryo, and it's become higher risk. I suppose most fertility doctors would probably do two and allow for the possibility of twins if that's acceptable to the mother. But you're really still really narrowing the chances of a successful implantation and a successful pregnancy delivered to terms. So it's very likely that women will have to do this more. And that also is compounded by the fact that, in addition to being difficult and emotionally stressful, it's extremely expensive and very few people have the resources to repeat this process over and over again without significant financial backing.

The process, if you speak to any woman who's had it, or couples that have gone through it, is it's quite an intensive process to prepare for it, for the extraction of the eggs, and then essentially the fertilization of the sperm and egg happened in the lab, and then once there's confirmed fertilization and just a little bit of growth of the embryo, it is then implanted. And you know, there's a question of whether the women's uterusm will accept the tissue and whether it will attach appropriately, and then there continue to be questions and a risk of unsuccessful implantation or miscarriage is a very significant risk. This is an amazing miracle of reproductive health technology that's a dance fertility, and in recent decades that's made this a possibility. But I'd personally know multiple couples that have had to go through round after round of this procedure, and that was with implanting multiple embryos just to get to success full pregnancy. And so basically this has eliminated the possibility of more than one embryo being implanted, and it means that the odds of each treatment of each IVF attempt are now reduced. If you do it in Alabama, where you certainly can't do more than one embryo, and it's become higher risk. I suppose most fertility doctors would probably do two and allow for the possibility of twins if that's acceptable to the mother. But you're really still really narrowing the chances of a successful implantation and a successful pregnancy delivered to terms. So it's very likely that women will have to do this more. And that also is compounded by the fact that, in addition to being difficult and emotionally stressful, it's extremely expensive and very few people have the resources to repeat this process over and over again without significant financial backing.

As we said, the ruling is only valid in Alabama, but at least eleven states have broadly defined personhood is beginning at fertilization in their state laws. So can we expect the anti abortion movement to start pushing decisions like this in other states?

As we said, the ruling is only valid in Alabama, but at least eleven states have broadly defined personhood is beginning at fertilization in their state laws. So can we expect the anti abortion movement to start pushing decisions like this in other states?

Yeah?

Yeah?

Absolutely. I think that the logic of the decision here is something that the right to life movement is supportive of, which is sort of treating embryos with more sanctity in all of these states and eliminating practices that have bothered them for a long time. Right, Like I said, we already in the last fifteen years, certain practices in fertility have already gone away under pressure, including the practice of implanting multiple embryos and then doing a reduction to remove embryos to get to the right number. It would not be surprising to be the law in all of these states, and it is a logical implication of saying that life begins at conception. I mean it would require some different articulation that would potentially devalue what's occurring at conception or immediately after to say otherwise. So I think this position is going to be supported by the pro life community, and I think the rest of us are going to have to figure out how to deal with it.

Absolutely. I think that the logic of the decision here is something that the right to life movement is supportive of, which is sort of treating embryos with more sanctity in all of these states and eliminating practices that have bothered them for a long time. Right, Like I said, we already in the last fifteen years, certain practices in fertility have already gone away under pressure, including the practice of implanting multiple embryos and then doing a reduction to remove embryos to get to the right number. It would not be surprising to be the law in all of these states, and it is a logical implication of saying that life begins at conception. I mean it would require some different articulation that would potentially devalue what's occurring at conception or immediately after to say otherwise. So I think this position is going to be supported by the pro life community, and I think the rest of us are going to have to figure out how to deal with it.

Would you say this is a new chapter in the continuing fight over women's reproductive rights.

Would you say this is a new chapter in the continuing fight over women's reproductive rights.

Yeah, I do think this is in the sense of new chapter. I don't think people should be surprised, right, I think that we've seen the implications already pose the repeal of Roe v. Wade with regard to not just abortion, but with regards to miscarriage treatment and seeing it extended into fertility. This is something that was absolutely predicted right after the repeal, not surprising. People should not be surprised to see contraception be the next battlefield. And these questions all are really going to push at what most of us have accepted as the traditional you know, right round reproduction, reproductive health access that women had, and that all of us that none of it should surprise anybody who was thinking through the implications when this repeal happened, and there were sure to.

Yeah, I do think this is in the sense of new chapter. I don't think people should be surprised, right, I think that we've seen the implications already pose the repeal of Roe v. Wade with regard to not just abortion, but with regards to miscarriage treatment and seeing it extended into fertility. This is something that was absolutely predicted right after the repeal, not surprising. People should not be surprised to see contraception be the next battlefield. And these questions all are really going to push at what most of us have accepted as the traditional you know, right round reproduction, reproductive health access that women had, and that all of us that none of it should surprise anybody who was thinking through the implications when this repeal happened, and there were sure to.

Be more ripple effects of the Supreme Court overturning Row. Thanks so much, Harry. That's Harry Nelson of Nelson Hardiman. I'm June Grasso, and you're listening to Bloomberg Day. Between now and November, the American people are going to know that the only reason the border is not secure is Donald Trump and as maga Republican friends. And it seems like President Joe Biden is trying to keep that promise of showing up Trump and Republicans who killed the biparties in border deal by making some changes of his own. The Biden administration is considering taking unilateral executive action using provisions of federal immigration law repeatedly tapped by former President Donald Trump, to enact a crackdown at the southern border. According to Bloomberg's sources, the administration has been exploring options that Biden could deploy on his own without congressional approval, but it's far from clear that the measures could withstand almost certain court challenges. Here to tell us about them is Leon Fresco, a partner at Holland and Knight. He was the former head of the Office of Civil Immigration Litigation in the Obama administration. So Leon tell us what measures Biden is considering.

Be more ripple effects of the Supreme Court overturning Row. Thanks so much, Harry. That's Harry Nelson of Nelson Hardiman. I'm June Grasso, and you're listening to Bloomberg Day. Between now and November, the American people are going to know that the only reason the border is not secure is Donald Trump and as maga Republican friends. And it seems like President Joe Biden is trying to keep that promise of showing up Trump and Republicans who killed the biparties in border deal by making some changes of his own. The Biden administration is considering taking unilateral executive action using provisions of federal immigration law repeatedly tapped by former President Donald Trump, to enact a crackdown at the southern border. According to Bloomberg's sources, the administration has been exploring options that Biden could deploy on his own without congressional approval, but it's far from clear that the measures could withstand almost certain court challenges. Here to tell us about them is Leon Fresco, a partner at Holland and Knight. He was the former head of the Office of Civil Immigration Litigation in the Obama administration. So Leon tell us what measures Biden is considering.

President Biden is considering a number of options, which some of them have been tried in the past and some have been rejected in the past because of questions about their legality. But let me take you through them. So the most important in terms of impact would be trying to take what is normally known as the travel ban statues, which is INA Section to twelve F, and actually saying that it can be used to remove people whose bodies have already entered the United States without letting them apply for asylum. Trump tried this, and the reason it didn't work is because the two twelve F travel ban statues uses this very interesting word in the immigration law, entry into the United States. But the problem is, under millions of cases that exist in immigration law, and you know, all the way up to the Supreme Court, this word entry means preventing the actual body from answering the United States. But once you've entered, then what's needed is a deportation. And so what the travel band statue prevents is an entry. But the entry here has already occurred, and so the question is, can you use this travel band statute deport someone without going through the normal deportation process, and that's going to be ultimately a question for the courts. But most likely is that's not going to be allowed because that wasn't allowed under the Trump administration. Even though that specific question didn't work its way all the way up to the Supreme Court. That is one of the things that they're discussing. The question is how likely it will be to succeed. It Just that's number one.

President Biden is considering a number of options, which some of them have been tried in the past and some have been rejected in the past because of questions about their legality. But let me take you through them. So the most important in terms of impact would be trying to take what is normally known as the travel ban statues, which is INA Section to twelve F, and actually saying that it can be used to remove people whose bodies have already entered the United States without letting them apply for asylum. Trump tried this, and the reason it didn't work is because the two twelve F travel ban statues uses this very interesting word in the immigration law, entry into the United States. But the problem is, under millions of cases that exist in immigration law, and you know, all the way up to the Supreme Court, this word entry means preventing the actual body from answering the United States. But once you've entered, then what's needed is a deportation. And so what the travel band statue prevents is an entry. But the entry here has already occurred, and so the question is, can you use this travel band statute deport someone without going through the normal deportation process, and that's going to be ultimately a question for the courts. But most likely is that's not going to be allowed because that wasn't allowed under the Trump administration. Even though that specific question didn't work its way all the way up to the Supreme Court. That is one of the things that they're discussing. The question is how likely it will be to succeed. It Just that's number one.

Let me just stop you a minute. So in that case they would take migrants to enter the country and immediately.

Let me just stop you a minute. So in that case they would take migrants to enter the country and immediately.

Deport them right Their argument would be employing I Ina too twelve f the ban on entry statutes to say that even though you've entered, we're not gonna let you answer because you've entered illegally. Entry means legal entry, and so we're banning any kind of illegal entry. And so once we find you, we're allowed to kick you out without getting asylum, without any due process of any kind. Any look to see about asylum or any trafficking or anything else. That's not going to be our concern. We're just gonna take you and move you right back into Mexico without any of that. And so the question will be does this ability that decides you give to prevent an entry work after an entry has already been made in a case where the entry made was illegal, And so that's gonna be the question that a court will have to determine.

Deport them right Their argument would be employing I Ina too twelve f the ban on entry statutes to say that even though you've entered, we're not gonna let you answer because you've entered illegally. Entry means legal entry, and so we're banning any kind of illegal entry. And so once we find you, we're allowed to kick you out without getting asylum, without any due process of any kind. Any look to see about asylum or any trafficking or anything else. That's not going to be our concern. We're just gonna take you and move you right back into Mexico without any of that. And so the question will be does this ability that decides you give to prevent an entry work after an entry has already been made in a case where the entry made was illegal, And so that's gonna be the question that a court will have to determine.

I'm sure that that definition of entry doesn't meet the Merriam Webster Dictionary definition, but legal interpretation is another thing. But it sounds like that wouldn't pass legal scrutiny when it's challenged, which it surely will be.

I'm sure that that definition of entry doesn't meet the Merriam Webster Dictionary definition, but legal interpretation is another thing. But it sounds like that wouldn't pass legal scrutiny when it's challenged, which it surely will be.

It may also be that the Biden administration doesn't care if that gets a join because at least from their per sective, they can say, look, we tried. Do you now see that this takes Congress, Congress down back to you.

It may also be that the Biden administration doesn't care if that gets a join because at least from their per sective, they can say, look, we tried. Do you now see that this takes Congress, Congress down back to you.

The Biden administration is also discussing ways to make it harder for migrants to pass the initial screening for asylum seekers, essentially raising the standard tell us about that.

The Biden administration is also discussing ways to make it harder for migrants to pass the initial screening for asylum seekers, essentially raising the standard tell us about that.

The standard right now is called credible fear, And what that says under the law is do you have a significant possibility of having an asylum case that's plausible? And the issue is that there is some dicta in the court. This is not binding law, but it's pretty strong dicta that even for an asylum case, you have to show that you have a ten percent chance of being persecuted in your home country. So this credible fear standard is do you have a significant possibility of having a ten percent chance? And so if a pretty lenient standard, and so what that means is a lot of people qualified. Now if you raise the standard, many people believe Congress is the one that needs to do that, because every single time that the government has tried to raise the standard, whether they do it on paper or whether they do it verbally, they kind of give a hint in so the agents look start finding ways to deny these claims. The advocates figure it out, they sue, and they enjoy whatever new move was done, because the law is actually pretty firm that it's this specific credible fear standard that must be applied at the moment until such time as Congress changes it.

The standard right now is called credible fear, And what that says under the law is do you have a significant possibility of having an asylum case that's plausible? And the issue is that there is some dicta in the court. This is not binding law, but it's pretty strong dicta that even for an asylum case, you have to show that you have a ten percent chance of being persecuted in your home country. So this credible fear standard is do you have a significant possibility of having a ten percent chance? And so if a pretty lenient standard, and so what that means is a lot of people qualified. Now if you raise the standard, many people believe Congress is the one that needs to do that, because every single time that the government has tried to raise the standard, whether they do it on paper or whether they do it verbally, they kind of give a hint in so the agents look start finding ways to deny these claims. The advocates figure it out, they sue, and they enjoy whatever new move was done, because the law is actually pretty firm that it's this specific credible fear standard that must be applied at the moment until such time as Congress changes it.

All right, that makes two that seem unlikely to withstand court challenges. What else are they discussing?

All right, that makes two that seem unlikely to withstand court challenges. What else are they discussing?

So then the next few possibilities are these sort of more acnee tried and truth. Always they try to do this and they never work. Resolutions like for instance, moving to a last in, first out processing to them, which what they say is, okay, let's just clear the decks of the millions of cases that we have for deportation, which is making things take many months. Let's just immediately put someone who comes tomorrow into the court so that way, at least these new cases are moving quickly and we can get them process. But what happens is that never works because the person then says, I haven't found the lawyer yet, and there's case law about getting people a chance to find the lawyer, and so you have to give them several weeks to do that. And then once you've done that, then you've already moved from this urgent processing point and we're back to square one again. So that issue of can we clear the decks and move cases quickly has unfortunately, And let's we're going to start assigning people lawyers so that then they have to make their asylum case on the spot. That would be a way you could people through the court quickly, But I don't think Congress has given enough funding to make that succeed at any grand scale, And I think people would be against that on the conservative side because they would say, why are you getting free lawyers to the foreign nationals coming illegally. But the problem is is if you don't do that, there's all the Staate well that says you have to give people a reasonable tine period to find a lawyer, which then subverts this ability to have a rocket docket essentially.

So then the next few possibilities are these sort of more acnee tried and truth. Always they try to do this and they never work. Resolutions like for instance, moving to a last in, first out processing to them, which what they say is, okay, let's just clear the decks of the millions of cases that we have for deportation, which is making things take many months. Let's just immediately put someone who comes tomorrow into the court so that way, at least these new cases are moving quickly and we can get them process. But what happens is that never works because the person then says, I haven't found the lawyer yet, and there's case law about getting people a chance to find the lawyer, and so you have to give them several weeks to do that. And then once you've done that, then you've already moved from this urgent processing point and we're back to square one again. So that issue of can we clear the decks and move cases quickly has unfortunately, And let's we're going to start assigning people lawyers so that then they have to make their asylum case on the spot. That would be a way you could people through the court quickly, But I don't think Congress has given enough funding to make that succeed at any grand scale, And I think people would be against that on the conservative side because they would say, why are you getting free lawyers to the foreign nationals coming illegally. But the problem is is if you don't do that, there's all the Staate well that says you have to give people a reasonable tine period to find a lawyer, which then subverts this ability to have a rocket docket essentially.

And they're also considering detaining more people.

And they're also considering detaining more people.

The problem is they are one, you need additional congressional funding to do it, which ICE is now saying they actually can have lesson to be able to detain people. And number two, you can't detain anyone where there's a kid involved, so you couldn't detain families coming together, and you can't detain children at all, and so you would just be detaining single adults, which the government is already doing at the capacity they're doing. The problem is many many more people coming than the detention spaces that exists. You know, maybe you can start using military bases and other things of this nature and not what can be done, but it's gonna need more funding to convince people you really are serious about detaining people.

The problem is they are one, you need additional congressional funding to do it, which ICE is now saying they actually can have lesson to be able to detain people. And number two, you can't detain anyone where there's a kid involved, so you couldn't detain families coming together, and you can't detain children at all, and so you would just be detaining single adults, which the government is already doing at the capacity they're doing. The problem is many many more people coming than the detention spaces that exists. You know, maybe you can start using military bases and other things of this nature and not what can be done, but it's gonna need more funding to convince people you really are serious about detaining people.

Does Biden have the resources for any of these plans to be implemented, so.

Does Biden have the resources for any of these plans to be implemented, so.

For the ban, he certainly does. The the band doesn't cost anything. The question is will the court uphold the ban for the increased detention. He's gonna need additional funding from Congress for things like, you know, food for the people that are being detained, housing, transportations to move them to these detention facilities, things of nature. So all of that will be needed. The question is will Congress give them that funding or what the Biden administration could do theoretically is divert resources from other Department of Homeland Security priorities to this. But the question is how much money is they're really in the budget to divert to this that's not being used for something useful. I mean, surely there will be some programs you can divert to this, but I don't know in terms of the billions that will be needed that they're billions left diverts. So that's why you would think the Congress would need to pass the funds for that.

For the ban, he certainly does. The the band doesn't cost anything. The question is will the court uphold the ban for the increased detention. He's gonna need additional funding from Congress for things like, you know, food for the people that are being detained, housing, transportations to move them to these detention facilities, things of nature. So all of that will be needed. The question is will Congress give them that funding or what the Biden administration could do theoretically is divert resources from other Department of Homeland Security priorities to this. But the question is how much money is they're really in the budget to divert to this that's not being used for something useful. I mean, surely there will be some programs you can divert to this, but I don't know in terms of the billions that will be needed that they're billions left diverts. So that's why you would think the Congress would need to pass the funds for that.

It sounds like all of these plans might have a problem in the courts, correct.

It sounds like all of these plans might have a problem in the courts, correct.

And I think that's where the question ultimately comes down to. Is the Biden administration proposing these changes to simply have them lose because it knows that they will lose, but at least they can say, look, we tried, and now isn't it obvious that Congress needs sacked. That's one option or option two. Aren't doing it to just say they did something at the end of the day. I mean, that's ultimately the question. It's not clear what the goal is. But if the goal is that they thing that there's something they can do at a moment that doesn't have some Congressional assistance, that's going to completely stem the tide of what's happening at the border. It's going to be very, very difficult to accomplish because they're going to need at least assistance from the court. Maybe they don't need assistance from Congress, but they're going to at least need assistant from the courts to do something that the courts have never permitted before.

And I think that's where the question ultimately comes down to. Is the Biden administration proposing these changes to simply have them lose because it knows that they will lose, but at least they can say, look, we tried, and now isn't it obvious that Congress needs sacked. That's one option or option two. Aren't doing it to just say they did something at the end of the day. I mean, that's ultimately the question. It's not clear what the goal is. But if the goal is that they thing that there's something they can do at a moment that doesn't have some Congressional assistance, that's going to completely stem the tide of what's happening at the border. It's going to be very, very difficult to accomplish because they're going to need at least assistance from the court. Maybe they don't need assistance from Congress, but they're going to at least need assistant from the courts to do something that the courts have never permitted before.

So a Bloomberg News Morning Console poll last month found that six and ten swing state voters say Biden bears at least some of the responsibility for a surgeon migrants. The border and migrants are going to be a prominent issue in the twenty twenty four elections, and you know, we've seen Democratic mayors and governors and some lawmakers asking Biden to do something about the migrant crisis. Do you think that will outweigh what we expect maybe outrage from you know, the far left and from immigration advocates.

So a Bloomberg News Morning Console poll last month found that six and ten swing state voters say Biden bears at least some of the responsibility for a surgeon migrants. The border and migrants are going to be a prominent issue in the twenty twenty four elections, and you know, we've seen Democratic mayors and governors and some lawmakers asking Biden to do something about the migrant crisis. Do you think that will outweigh what we expect maybe outrage from you know, the far left and from immigration advocates.

I think it will pay during the spring how intense the crossings are. If the crossings are at the three million per year rates that we've been seeing very recently, it's going to be very difficult the impact that this is going to have on cities. And this is where I think the Biden administration would at least do itself some good in terms of trying to go to the Congress and say, look, if we're going to do something, we need to at least have detention. You need to at least give us the money to do one specific thing which has detained single adults who don't have anywhere to go and are dependent on cities to house. That probably needs stand as soon as possible. Now, do they need more money to do that? Probably? I don't think there's the money now in the budget to do this on a massive scale. But I do think if Republicans were to reject that, or if Democrats or whoever were to reject that, then that would look like a very bad faith effort. I mean, you could talk about all these changes in the law that some people liked or didn't like or whatever. But if the issue is just, hey, what do you want us to do with people? If it's not to detain them while their cases processing, you tell us what you want us to do. And so that's the case. Now you can say, well, what I want you to do is do remain in Mexico. But the problem is there that infrastructure, you know, to the extent that people want to blame Joe Biden for something, was torn down completely at the beginning of the Biden administration, and then Mexico took legal measures to make it impossible in Mexico for that to ever be done again, meaning Mexico had acquiesced. Now there's Supreme Court decisions in Mexico that prohibits this, and there's laws in Mexico that prohibits this. And so what what needs to happen is that whole process that started under the Trump administration we need to be restarted where Mexico is threatened again. Hey, your days of building cars in Mexico are over. We're going to give it a fifty percent tire off if you don't help us with remain in Mexico, and then Mexico would have to change all its laws again and go back to the Supreme Courn and figure out the way where that would be allowed to be changed again and do all of that. And the point is the Biden administration needs a solution in a month. They don't need a solution in six months or a year. So that's the problem with sort of having taken down that infrastructure. If that infrastructure cannot be built so quickly, three institute remain in Mexico.

I think it will pay during the spring how intense the crossings are. If the crossings are at the three million per year rates that we've been seeing very recently, it's going to be very difficult the impact that this is going to have on cities. And this is where I think the Biden administration would at least do itself some good in terms of trying to go to the Congress and say, look, if we're going to do something, we need to at least have detention. You need to at least give us the money to do one specific thing which has detained single adults who don't have anywhere to go and are dependent on cities to house. That probably needs stand as soon as possible. Now, do they need more money to do that? Probably? I don't think there's the money now in the budget to do this on a massive scale. But I do think if Republicans were to reject that, or if Democrats or whoever were to reject that, then that would look like a very bad faith effort. I mean, you could talk about all these changes in the law that some people liked or didn't like or whatever. But if the issue is just, hey, what do you want us to do with people? If it's not to detain them while their cases processing, you tell us what you want us to do. And so that's the case. Now you can say, well, what I want you to do is do remain in Mexico. But the problem is there that infrastructure, you know, to the extent that people want to blame Joe Biden for something, was torn down completely at the beginning of the Biden administration, and then Mexico took legal measures to make it impossible in Mexico for that to ever be done again, meaning Mexico had acquiesced. Now there's Supreme Court decisions in Mexico that prohibits this, and there's laws in Mexico that prohibits this. And so what what needs to happen is that whole process that started under the Trump administration we need to be restarted where Mexico is threatened again. Hey, your days of building cars in Mexico are over. We're going to give it a fifty percent tire off if you don't help us with remain in Mexico, and then Mexico would have to change all its laws again and go back to the Supreme Courn and figure out the way where that would be allowed to be changed again and do all of that. And the point is the Biden administration needs a solution in a month. They don't need a solution in six months or a year. So that's the problem with sort of having taken down that infrastructure. If that infrastructure cannot be built so quickly, three institute remain in Mexico.

Okay, thanks so much, Leon. We'll see what Biden decides to do if anything. That's Leon Fresco, a partner at Holland and Knight. I'm June Gross. When you're listening to Bloomberg. Some of the biggest names in corporate America have kicked off the year with large layoffs. Companies announced plans to cut eighty two thousand, three hundred and seven positions last month, up one hundred and thirty six percent from December and the second most of any in January since the aftermath of the financial crisis. That's according to Challenger, Gray and Christmas. So how should companies and executives prepare for large scale layoffs? While following employment laws and avoiding litigation. Here to tell us is Rebecca Bernhardt, a partner at Dorsey and Whitney. Let's start with a big one tell us about the WARN Act.

Okay, thanks so much, Leon. We'll see what Biden decides to do if anything. That's Leon Fresco, a partner at Holland and Knight. I'm June Gross. When you're listening to Bloomberg. Some of the biggest names in corporate America have kicked off the year with large layoffs. Companies announced plans to cut eighty two thousand, three hundred and seven positions last month, up one hundred and thirty six percent from December and the second most of any in January since the aftermath of the financial crisis. That's according to Challenger, Gray and Christmas. So how should companies and executives prepare for large scale layoffs? While following employment laws and avoiding litigation. Here to tell us is Rebecca Bernhardt, a partner at Dorsey and Whitney. Let's start with a big one tell us about the WARN Act.

So the WARN Act, which actually stands for the Worker Adjustment and Retraining Notification Act, believe it or not, is basically a law on the federal level that applies to employers with more than one hundred employees if they are going to be doing what's called a mass layoff or a plant closure. And then there's of course statutory and regulatory definitions of what those terms means. But in a nutshell, if you have more than one hundred employees and you're going to lay off at least fifty in one single location, then the WARN Act is triggered, which is you're giving notice not just to the employees, although that's a huge component and that's what most people think about it, but you're also giving notice to a variety of guys government agencies. The original philosophy there was that those government agencies would rally and get the unemployment people on standby, and get any workforce training resources that they have on standby and that kind of thing. So once that applies. It means you have to give sixty days advance notice both to the group of employees who are affected their union and to this variety of state authorities, starting with like the mayor of the local community and then the Department of Labor is representative in that area that kind of thing.

So the WARN Act, which actually stands for the Worker Adjustment and Retraining Notification Act, believe it or not, is basically a law on the federal level that applies to employers with more than one hundred employees if they are going to be doing what's called a mass layoff or a plant closure. And then there's of course statutory and regulatory definitions of what those terms means. But in a nutshell, if you have more than one hundred employees and you're going to lay off at least fifty in one single location, then the WARN Act is triggered, which is you're giving notice not just to the employees, although that's a huge component and that's what most people think about it, but you're also giving notice to a variety of guys government agencies. The original philosophy there was that those government agencies would rally and get the unemployment people on standby, and get any workforce training resources that they have on standby and that kind of thing. So once that applies. It means you have to give sixty days advance notice both to the group of employees who are affected their union and to this variety of state authorities, starting with like the mayor of the local community and then the Department of Labor is representative in that area that kind of thing.

Do the government officials that you have to give notice to are they able to do anything?

Do the government officials that you have to give notice to are they able to do anything?

In theory, they don't do anything other than rally their own resources. They don't actually engage with the employer to negotiate over who's being laid off or what's being done with for example, severance packages or anything like that. The reason I mentioned that is because there are a couple exceptions to the Warnan Act in terms of when you can give notice, and a lot of companies like to rely on these exceptions. But I say it's, you know, you should be cautious because the unforeseen circumstances or the faltering business exceptions, and the unforeseen circumstances was a big one during the pandemic. Of course, they still require you to give notice, and they definitely require you to give notice to government. It's just that you might not have to give sixty day notice. You have to give notice as soon as possible, and so a lot of employers will say, oh, we're a fultering company, or they were unforeseen circumstances, and so they'll lay the people off that same day with no notice, and then they forget to give the government their notice because they think we're not following them one Act sixty day notes requirement, and then they're in trouble with the government for not issuing those government notices, and that involves fine.

In theory, they don't do anything other than rally their own resources. They don't actually engage with the employer to negotiate over who's being laid off or what's being done with for example, severance packages or anything like that. The reason I mentioned that is because there are a couple exceptions to the Warnan Act in terms of when you can give notice, and a lot of companies like to rely on these exceptions. But I say it's, you know, you should be cautious because the unforeseen circumstances or the faltering business exceptions, and the unforeseen circumstances was a big one during the pandemic. Of course, they still require you to give notice, and they definitely require you to give notice to government. It's just that you might not have to give sixty day notice. You have to give notice as soon as possible, and so a lot of employers will say, oh, we're a fultering company, or they were unforeseen circumstances, and so they'll lay the people off that same day with no notice, and then they forget to give the government their notice because they think we're not following them one Act sixty day notes requirement, and then they're in trouble with the government for not issuing those government notices, and that involves fine.

I mean, often you hear about layoffs. You know, they're laying off this many people, and they're laying them off right then they don't give you know, two months notice to the employee. Is that they're looking at an exception?

I mean, often you hear about layoffs. You know, they're laying off this many people, and they're laying them off right then they don't give you know, two months notice to the employee. Is that they're looking at an exception?

It could be, and it certainly was fairly common in again in the pandemic. Now, I mean, I obviously can't speak to every individual circumstance, and it's possible that they're looking exceptions, but a lot of companies do what I call pre pay the penalty. So if you fail on the employees side, the penalty or the remedy, if you will, would be that the employee is entitled to basically their salary and continued benefits for the period in which the note was deficient. So in your example, if I'm told today that I'm being laid off, i didn't get my sixties day notice, so I'm entitled to sixty days of pay and benefits. And so a lot of times employers will say, sorry, Rebecca, we're laying you off today. Here's a severance package that includes at least sixty days notice and at least sixty days of all your continued benefits. Sign this release, and they're hoping basically that that will satisfy their obligations. As a relief to the individual employees. They don't want to give the notice, so they just essentially prepay the damages of the potential litigation if it ensues.

It could be, and it certainly was fairly common in again in the pandemic. Now, I mean, I obviously can't speak to every individual circumstance, and it's possible that they're looking exceptions, but a lot of companies do what I call pre pay the penalty. So if you fail on the employees side, the penalty or the remedy, if you will, would be that the employee is entitled to basically their salary and continued benefits for the period in which the note was deficient. So in your example, if I'm told today that I'm being laid off, i didn't get my sixties day notice, so I'm entitled to sixty days of pay and benefits. And so a lot of times employers will say, sorry, Rebecca, we're laying you off today. Here's a severance package that includes at least sixty days notice and at least sixty days of all your continued benefits. Sign this release, and they're hoping basically that that will satisfy their obligations. As a relief to the individual employees. They don't want to give the notice, so they just essentially prepay the damages of the potential litigation if it ensues.

What happens if you have union members in your workforce? What should employers do?

What happens if you have union members in your workforce? What should employers do?

Well, this is a great question because the first thing you should do is pull out your collective bargaining agreement, your contract with the union, because there might be language in there, and you don't want to be in a position of not following what you've already agreed upon with the union, which you could have agreed upon decades ago. Right, a lot of union relationships are decades old and current managers don't remember all of the well i'll call boiler plate that's in a collective barning agreement because they never have to use it. Right, But generally speaking, if there's language in the collective barging agreement that says you have to bargain with the union before you implement layoffs, then that's what you have to do.

Well, this is a great question because the first thing you should do is pull out your collective bargaining agreement, your contract with the union, because there might be language in there, and you don't want to be in a position of not following what you've already agreed upon with the union, which you could have agreed upon decades ago. Right, a lot of union relationships are decades old and current managers don't remember all of the well i'll call boiler plate that's in a collective barning agreement because they never have to use it. Right, But generally speaking, if there's language in the collective barging agreement that says you have to bargain with the union before you implement layoffs, then that's what you have to do.

Right.

Right.

You have to sit down. You have to say we're in trouble, we need to reduce our workforce, and we're here to talk to you about what your ideas are for that. Right, most general labor law says that unless there is the scifick language like that, you don't have to bargain with the union what i'll call in advance over the decision. But you do have to bargain over what's called the effects, and that's called effects bargaining. And so you have to say to the union, we are going to lay people off. We're going to lay you know, one hundred people off from these two plants, and we're here to bargain with you over you know, the effects of that layoff. And generally speaking, that's you know, as you would expect severance, But sometimes unions want contributions depend funds over money, and sometimes they might want retraining money, you know, to help their employees get jobs somewhere else. So you know, that's the theory. They have the right to sort of decide what kind of sefarence they want. Now, it's possible that the contract itself already contains some severance language. It's usually contains seniority clauses, which give you some guide of if you are laying people off, here's the order in which you have to do it. Those kinds of things have to be followed, or else you're going to get in trouble with kind of union mitigation. So you want to follow anything that's already in the contract, and then you want to sit down and bargain or anything that hasn't been decided about the layoff process.

You have to sit down. You have to say we're in trouble, we need to reduce our workforce, and we're here to talk to you about what your ideas are for that. Right, most general labor law says that unless there is the scifick language like that, you don't have to bargain with the union what i'll call in advance over the decision. But you do have to bargain over what's called the effects, and that's called effects bargaining. And so you have to say to the union, we are going to lay people off. We're going to lay you know, one hundred people off from these two plants, and we're here to bargain with you over you know, the effects of that layoff. And generally speaking, that's you know, as you would expect severance, But sometimes unions want contributions depend funds over money, and sometimes they might want retraining money, you know, to help their employees get jobs somewhere else. So you know, that's the theory. They have the right to sort of decide what kind of sefarence they want. Now, it's possible that the contract itself already contains some severance language. It's usually contains seniority clauses, which give you some guide of if you are laying people off, here's the order in which you have to do it. Those kinds of things have to be followed, or else you're going to get in trouble with kind of union mitigation. So you want to follow anything that's already in the contract, and then you want to sit down and bargain or anything that hasn't been decided about the layoff process.

If there is no language in the contract in the union contract, do unions have any power to stop a layoff.

If there is no language in the contract in the union contract, do unions have any power to stop a layoff.

So, of course the current and LRB is very employee friendly, and so you know, it is unclear how cases might have evolved, but in general, the case law that's kind of Supreme Court made that has bubbled up and it's pretty old. It's you know, cases from the seventies and eighties. It says basically what I just said, which is you don't get to you don't get to bargain over the decision of whether or author's playoffs. But that doesn't mean that a union can't try. Right, a union could say, we understand you want to do layoffs, we'd like to talk to you because we have an alternative suggestion. We'd rather go to part time schedules, or we'd rather, you know, move some work from point A to point B. They are certainly free to request negotiation. They of course have all of the economic tools that they would have in any bargaining situation, which, as we understand them, are strikes. Of course, that would be ironic to go on a strike regarding a layoff, but that is, you know, the biggest weapon that a union has is to sort of put that economic pressure. I think that the Uniana workers what I'll call rolling job actions that happened, you know, a couple of months ago. Those were an interesting creative strategy, and you can see how that would work in a layoff pressure campaign. Right, if I want to lay off, if I want to you know, close my plants and you know, Detroit, Michigan, my workers in you know, Mary in Indiana might say, oh, well we're going to we're going to strike, and it's like, no, no, no, I like that plan. I want that plan to be operational, right, and that and that might put pressure on me as the employer to sit down with the union to figure out what we're going to do about Detroit.

So, of course the current and LRB is very employee friendly, and so you know, it is unclear how cases might have evolved, but in general, the case law that's kind of Supreme Court made that has bubbled up and it's pretty old. It's you know, cases from the seventies and eighties. It says basically what I just said, which is you don't get to you don't get to bargain over the decision of whether or author's playoffs. But that doesn't mean that a union can't try. Right, a union could say, we understand you want to do layoffs, we'd like to talk to you because we have an alternative suggestion. We'd rather go to part time schedules, or we'd rather, you know, move some work from point A to point B. They are certainly free to request negotiation. They of course have all of the economic tools that they would have in any bargaining situation, which, as we understand them, are strikes. Of course, that would be ironic to go on a strike regarding a layoff, but that is, you know, the biggest weapon that a union has is to sort of put that economic pressure. I think that the Uniana workers what I'll call rolling job actions that happened, you know, a couple of months ago. Those were an interesting creative strategy, and you can see how that would work in a layoff pressure campaign. Right, if I want to lay off, if I want to you know, close my plants and you know, Detroit, Michigan, my workers in you know, Mary in Indiana might say, oh, well we're going to we're going to strike, and it's like, no, no, no, I like that plan. I want that plan to be operational, right, and that and that might put pressure on me as the employer to sit down with the union to figure out what we're going to do about Detroit.

So now there's always a question of, you know Title seven antidiscrimination laws, what are the concerns that employers have to think about there?

So now there's always a question of, you know Title seven antidiscrimination laws, what are the concerns that employers have to think about there?

That is the biggest kind of area I think employer side and employment lawyers are kind of engaged to deal with. It's the selection who.

That is the biggest kind of area I think employer side and employment lawyers are kind of engaged to deal with. It's the selection who.

Right.

Right.

In the union context, we've got what I said already, we've got this kind of seniority concept that helps you select and that kind of insulates employer in that world. But in the non union environment, it's really up to the employer to decide who I'm picking, right, and human nature is going to be such that I want to pick the people I think are the worst performers, or I want to pick the people that I don't like. I'm a human being, I have emotions, and so of course anytime you're making those kinds of decisions, you want to make sure that you can defend those on objective criteria and not subjective criteria, because subjective criteria would make it easier for the affected employees to proceed with discrimination suits. You know, you might say that you pick the people with the lost review scores, but it just happens that you picked all of the you know, the people of color, and we think that you know, your statement that it was the lowest performance scores is actually pretext and you were just trying to get rid of the people of color in the plant. And so the selection of who gets picked for the layoffs would trigger any of the protective statuses under the state or federal laws Title seven as you noted, but the Age Discrimination Act, and then any local laws that mirror those, and then of course disability to so layoffs.

In the union context, we've got what I said already, we've got this kind of seniority concept that helps you select and that kind of insulates employer in that world. But in the non union environment, it's really up to the employer to decide who I'm picking, right, and human nature is going to be such that I want to pick the people I think are the worst performers, or I want to pick the people that I don't like. I'm a human being, I have emotions, and so of course anytime you're making those kinds of decisions, you want to make sure that you can defend those on objective criteria and not subjective criteria, because subjective criteria would make it easier for the affected employees to proceed with discrimination suits. You know, you might say that you pick the people with the lost review scores, but it just happens that you picked all of the you know, the people of color, and we think that you know, your statement that it was the lowest performance scores is actually pretext and you were just trying to get rid of the people of color in the plant. And so the selection of who gets picked for the layoffs would trigger any of the protective statuses under the state or federal laws Title seven as you noted, but the Age Discrimination Act, and then any local laws that mirror those, and then of course disability to so layoffs.

I've seen people laid off and then they get something from the company. Here's who we laid off. So we laid off twenty people above the age of fifty, and then we kept twenty people above the age of fifty. I mean, do they try to balance it out that way?

I've seen people laid off and then they get something from the company. Here's who we laid off. So we laid off twenty people above the age of fifty, and then we kept twenty people above the age of fifty. I mean, do they try to balance it out that way?

So that is an obligation to provide what that's called a disclosure statement under the relations for the Age Discrimination Acts amendment of the Older Workers Benefit Protection Act. So the Older Worker Benefit Protection Act amended the Age Discrimination Act and said, if you're going to lay people off and you're going to give them a release of claims to sign in connection with the seference package and it's a group, you know, termination, you need to give them information about everybody who was laid off and their ages. You can do it by job title. You're not going to do it by name. And that way those older people can take it to a journey if they wish, and there's an easy way to visually say are they really picking on all the old people? And if you know your history just came out of the movement in the eighties, which of course is where the Warnact came out of too. There was a lot of plant closures in the eighties and a lot of companies just picked all the older workers because they were the more expensive. It saved the money on their pensions, and all these folks got laid off and then they didn't realize they were losing their pensions in the process. So the WARN Act came up to sort of help on that end, and then the Older Worker Benefit Protection Act was kind of a sort of individual right roomy neal amendments to help people get more information about who's being selected and who's not to decide is there really an age discrimination? So interestingly enough, you had mentioned Title seven before that doesn't require that same kind of disclosure on whether it's men versus women, or Lutherans versus Catholics, so you know, or all the other protective statuses, you know, white versus non white, and so employers do, I think, try to do that assessment and that analysis across the board, but they only have to actually share those numbers with the affected employees visa the age, and I do think they try to balance it out. If employers bringing lawyers like me into the mix, and we look at that statement before it gets you know, finalized, we think, geez, it looks like you've got sixty people being laid off and fifty five of them are old, Right, how are you picking your people?

So that is an obligation to provide what that's called a disclosure statement under the relations for the Age Discrimination Acts amendment of the Older Workers Benefit Protection Act. So the Older Worker Benefit Protection Act amended the Age Discrimination Act and said, if you're going to lay people off and you're going to give them a release of claims to sign in connection with the seference package and it's a group, you know, termination, you need to give them information about everybody who was laid off and their ages. You can do it by job title. You're not going to do it by name. And that way those older people can take it to a journey if they wish, and there's an easy way to visually say are they really picking on all the old people? And if you know your history just came out of the movement in the eighties, which of course is where the Warnact came out of too. There was a lot of plant closures in the eighties and a lot of companies just picked all the older workers because they were the more expensive. It saved the money on their pensions, and all these folks got laid off and then they didn't realize they were losing their pensions in the process. So the WARN Act came up to sort of help on that end, and then the Older Worker Benefit Protection Act was kind of a sort of individual right roomy neal amendments to help people get more information about who's being selected and who's not to decide is there really an age discrimination? So interestingly enough, you had mentioned Title seven before that doesn't require that same kind of disclosure on whether it's men versus women, or Lutherans versus Catholics, so you know, or all the other protective statuses, you know, white versus non white, and so employers do, I think, try to do that assessment and that analysis across the board, but they only have to actually share those numbers with the affected employees visa the age, and I do think they try to balance it out. If employers bringing lawyers like me into the mix, and we look at that statement before it gets you know, finalized, we think, geez, it looks like you've got sixty people being laid off and fifty five of them are old, Right, how are you picking your people?

Right?

Right?

That looks pretty permisitious, And we would work on sort of the selection criteria and say, you know, are you sure that these are the right sixty people?

That looks pretty permisitious, And we would work on sort of the selection criteria and say, you know, are you sure that these are the right sixty people?

Are there any general rules you would give employers when they're thinking about layoffs?

Are there any general rules you would give employers when they're thinking about layoffs?

Yeah, I think that all of these different anti excrimination laws and warning requirements are counterintuitive to the way people tend to make their actual business decisions. And so I've just encourage people to try to slow down and contact council, either in house counsel if you got it, or external employment council, just to help reframe the decision making. You know, no one wants to question your business. No lawyer, no good lawyers should question your legitimate business needs to take the steps you need to take. But by slowing down and sort of helping think about what does the law say you have to think about, I think you can still make the business decisions you need, but you can sort of be aware of the legal framework that might constrain some of those business decisions or require you to think about, you know, a selection criteria. It's more objective, for example, and the after effects and costs. Right, if we don't give notice, what are the caught risks of being sued for notice pay in the first place? And so is it actually cheaper to give that notice and let those people work? You know, that kind of thing A.

Yeah, I think that all of these different anti excrimination laws and warning requirements are counterintuitive to the way people tend to make their actual business decisions. And so I've just encourage people to try to slow down and contact council, either in house counsel if you got it, or external employment council, just to help reframe the decision making. You know, no one wants to question your business. No lawyer, no good lawyers should question your legitimate business needs to take the steps you need to take. But by slowing down and sort of helping think about what does the law say you have to think about, I think you can still make the business decisions you need, but you can sort of be aware of the legal framework that might constrain some of those business decisions or require you to think about, you know, a selection criteria. It's more objective, for example, and the after effects and costs. Right, if we don't give notice, what are the caught risks of being sued for notice pay in the first place? And so is it actually cheaper to give that notice and let those people work? You know, that kind of thing A.

Love for employers to think about. Thanks so much, Rebecca. That's Rebecca Bernhardt of Dorsey and Whitney and that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso, and this is Bloomberg

Love for employers to think about. Thanks so much, Rebecca. That's Rebecca Bernhardt of Dorsey and Whitney and that's it for this edition of the Bloomberg Law Podcast. Remember you can always get the latest legal news by subscribing and listening to the show on Apple Podcasts, Spotify, and at Bloomberg dot com, slash podcast, slash Law. I'm June Grosso, and this is Bloomberg