The New Law that Broadens Employee Email Usage [e136]

January 9, 2015

Nasir and Matt talk about expandingemail usage for employees to include non-work purposes. They then answer the question, “How do I get out of a lease? We have been there for years, but our lease is ending in two. We originally signed a guarantee, but we didn’t in our renewal, so I’m willing to possibly walk away if we can stop ourselves from personal liability? In NorCal.”

Full Podcast Transcript

NASIR: All right. Welcome to Legally Sound Smart Business and I’ve already messed up the intro again. Welcome to our podcast where we cover business in the news and answer some of your business legal questions that you, the listener, can send in to ask@legallysoundsmartbusiness.com.
My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: Matt Staub is joining us, nice. I love it.

MATT: You know, when you say the actual name of the podcast, that doesn’t mean you messed it up but…

NASIR: Well, yeah, that’s true. But, as we’ve discussed many times before, if I say the name of the podcast, then it’s like, why do we even have an intro to our intro? I guess… should we just start talking and not even have an intro?

MATT: Make it a choose-your-own-adventure so the audience can choose which way they want to go.

NASIR: That would be awesome.

MATT: I don’t know if that’s possible to do. Probably not.

NASIR: Oh, someday with audio and you can integrate it. I think we should implement that.

MATT: Well, Friday episode, I guess this is relevant because what do employees do on a Friday other than use their work email for personal reasons, right?

NASIR: I was going to say, other than spying on your employees and going through your employees’ emails.

MATT: Yeah, I don’t use my work email for personal reasons. Maybe, like, two percent of the time when people accidentally email me on the wrong one, but I keep mine separate, especially with technology these days.

NASIR: It’s so easy to do so, right?

MATT: Yeah, I mean, on your phone… Actually, I don’t check my personal email. I’ll usually check it in the morning and, like, around noon, and then not till I’m done for the day because I never really get anything that important in my personal email so I just don’t want to get distracted with nonsense.

NASIR: In my Gmail account, I have both my work email and my personal email going there, so I do happen to, once in a while, like you said, someone sends something to my work email and that’s the only time that you don’t separate it.

MATT: All right, and I think that’s our episode.

NASIR: That’s our episode. Thank you for joining us.

MATT: Email tips.
So, what we’re dealing with is, it’s what decisioned by the National Labor Relations Board, basically saying that employees who have been given access to their employer’s email system, that those employees can then use that email for non-business purposes. You know, the big thing in this one was union organization was a possibility that these employees could use the work email for but I look at it as, for a range of non-business purposes, these employees can now use their work email which should be pretty interesting to see how employers deal with this.

NASIR: Yeah, the NLRA which is a board that has been charged with dealing with some union disputes but also unfair employer practices as well. So, it’s not often that they do have a limited scope but they do have some kind of wide-reaching effect sometimes with some of their decisions, especially in this case where the implications for employers are such that, now, you can’t do an outright ban or non-work use of the email system which can be interesting because a lot of people are like, “Okay, just use the email for work purposes only,” but now they’re saying that there’s a certain statutory protected communication that cannot be restricted during non-work time so long as there’s no – how do they put it?

MATT: Creates a danger of server overload or damage from excessive use.

NASIR: Yeah, that was a specific example, but the restriction is justified by special circumstances necessary to maintain production or discipline. And so, basically, what the board is saying is that, unless you have a very compelling reason, you can’t do this because they’re saying that it’s going to be a rare exception to the rule.

MATT: Yeah, this doesn’t mean that employees can just go to work and use their work email and that blast away on a ton of personal emails to their work. I mean, that’s not the ruling that came down here. It’s just that, when the time is right and appropriate, the employees can use their work email.

NASIR: And, unfortunately, the actual decision is not as clear as many of us would like to be as far as the legal world is so it’s not yet clear how this is going to develop and how it’s going to impact actual employers. But one thing we do know is that the scope of protection for these kinds of employment activity has been broadened. And so, the takeaway from all this is that, if you have a policy where you are (1) restricting the use of the email and (2) even surveilling your email – because, again, now that employees can use this email for non-work activity, that may be protected under different privacy laws in both federal and even state from actually surveilling such emails. So, I think there should be an alternative policy that would fit the decision – Purple Communications decision. But it’s a very subtle issue that you don’t want to get into trouble with. So, if you do have those kinds of policies, get it reviewed by an attorney.

MATT: Yeah, and in terms of monitoring the email systems, the employers have the responsibility to show that the monitoring policies are not seen as improper surveillance or an illegal response to specifically protected employee communications. So, it’s a little bit tougher for employers as well.

NASIR: Yeah, no doubt. I was taken aback from this decision, actually. It seems a little too much. I mean, why not be able to just restrict your employees in such a way? I don’t think that that is too much of a restriction from an employee’s perspective.

MATT: No, I agree, but it’s not the first time you’ve been wrong so that’s all right.
[MUSIC]

NASIR: All right, let’s get to our question of the day.

MATT: Question of the day. Well, the actual question’s only a few words at the beginning, but there’s some follow-up. I’ll read the whole thing just so people get a full idea.

NASIR: Yeah, read the whole thing.

MATT: “How do I get out of a lease? We have been there for years but our lease is ending in two. We originally signed a guarantee, but we didn’t in our renewal, so I’m willing to possibly walk away if we can ourselves from personal liability in NorCal.”

NASIR: Northern California.

MATT: Very interestingly worded, grammatically structured question. But, nonetheless, it’s a good question.

NASIR: Yeah, it is a good question. I think the first thing that spotted out with me is the guarantee aspect. You know, a lot of times, even if you have a renewal, these guarantees are worded as such that they extend to even renewals. So, even if you do a renewal, unless the guarantee doesn’t provide this – but most do, especially leases – you have to put in there that the guarantee is cancelled or terminated. Without that, this person may want to walk away but he or she may not be able to because the guarantee still may be good. So, that would be the first thing I would check before walking away.

MATT: Yeah, I mean, I guess it’s hard to know, but I would want to know why they want to get out of the lease. Is it because they just feel like the rent is too high which is one thing or is it because they feel like their landlord’s not doing what they’re supposed to be doing on their end? Because, if that’s the case, then it’s going to be easier for you if you can show that the landlord’s doing things incorrectly. But, at the same time, I think oftentimes there is clauses in there allowing basically, usually the tenant has to provide written notice of a landlord’s breach and then the landlord will have something like 30 days to cure the breach so it seems like there’s always a lot of protections in there for the landlord.

NASIR: I assume it’s because of money reasons. I mean, that’s usually the case when a tenant wants out of the lease. It’s usually difficult for a landlord in a commercial lease to not be upholding its bargain. It’s not too often that they end up being the ones who are breaching. But, yeah, it does happen, of course.
How I approach it is that the best that you can do is just negotiate with your landlord. I mean, this is dollars and cents from the landlord’s perspective. If they can find either a new tenant or, even better for you is, if you sublease a space – let’s say it’s money reasons – if you are able to sublease part of the space and use the other, save some money, and be able to pay your rent and fulfill your obligations without extending yourself to personal liability, that’s usually the best option. Keep in mind that there’s obligation from the landlord – and this is a general law – that the landlord must mitigate its damages. So, even though under California law, for example, this person is in Northern California, landlords are entitled to receive the total consideration of the lease after default. So, if there’s two more years left and you break the lease, then they can receive the rent for those two years. However, those tenants in the same circumstance will argue that, if they can demonstrate that they can reduce the losses by leasing it to somebody else, then they can reduce the damages. But there’s a particular statute provision that allows landlords, if they put it within the lease, to remove this obligation to mitigate damages. It’s not in most of the standard forms, but occasionally they are and they’re very dangerous. Look out for this. It’s Civil Code 1951.4 so I would take a look to make sure that it’s not in there because, if they comply with those restrictions, it could mean that they don’t have to mitigate damages which would be a huge, huge difference, and take the consideration of being able to put in a sublease or a sub-tenant in there out of the question.

MATT: Yeah, that would be a big one in terms of… it would be bad for the person asking the question, I suppose.

NASIR: I think the first thing is to evaluate what your lease says. If you can find a reason to get out of the lease, that’s fine, but that’s very unlikely; the real thing that you need to be looking at it is – worst case scenario – if you walk away today, what are your responsibilities? And those are two things to look at.

MATT: Tough situation for the tenant, but keep it sound and keep it smart.

Employment Law Page

By

The Podcast Where Nasir Pasha and Matt Staub cover business in the news with their legal twist and answer business legal questions that you the listener can send it to info@legallysoundsmartbusiness.com.

Get Business Legal Updates

Please provide your full name.
Please provide a valid email address.
We respect your privacy, and we will never share your information. Unsubscribe at any time.
Legally Sound Smart Business cover art

Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
Apple Podcast badge
Google Podcast badge
Spotify Podcast badge

Latest Episodes

November 21, 2023

In this episode, Nasir Pasha and Matt Staub explore the legal implications of Artificial Intelligence in the business world. They delve into the most talked-about issue of 2023: AI and its impact on the legal landscape. Although AI isn’t necessarily a new topic, it has many unanswered questions in the legal world. Nasir and Matt…

July 12, 2023

In this episode, Attorney Nasir Pasha and Attorney Matt Staub delve deep into the complexities of mass layoffs and offer valuable insights, real-life examples, and practical advice to employers grappling with the aftermath of such challenging situations. Nasir and Matt emphasize the critical importance of effective communication when executing mass layoffs. They stress the need…

January 9, 2023

As the COVID-19 pandemic swept across the globe, businesses scrambled to adapt to the new reality it presented. In this blog post, we dive into the case of Goldman Sachs, a financial services giant, to examine their response to the crisis and the lessons other businesses can learn from their return-to-office strategy. From prioritizing employee…

October 28, 2022

Full Podcast Transcript NASIR: Finally, my two favorite worlds have collided – both the law and the chess – right here at Memorial Park in Houston, Texas. Windy day. We have some background noise – ambient noise. What are the two worlds that collided? Well, Hans Neimann has sued Magnus Carlsen for defamation in one…

September 26, 2022

Through a five-round championship bout, Matt travels to Texas from California to determine which state is better for business. Will it be a knockout with a clear winner or will it go to the scorecards?

July 7, 2022

Whether you are buying or selling a business, the transaction goes through the same steps. However, they are viewed from different perspectives. Sellers may not want to fully disclose all the blind spots while Buyers will want otherwise. Nasir and Matt battle it out in this Buyer vs. Seller to determine who has the advantage!…

May 12, 2022

When it comes to Restrictive Covenants, employers are fighting to keep their company safe while employees may use them to their advantage. Keep listening to find out if the Employer or the Employee wins this battle. Round 1: Trade Secrets A company’s trade secrets encompass a whole range of information and are one of the…

February 14, 2022

The Supreme Court rejected the nation’s vaccine mandate. Businesses with 100 or more employees are NOT required to have their employees vaccinated or go through weekly testings. However, this policy remains in effect for health care facilities. In this episode of Legally Sound | Smart Business, the team sat down to discuss their thoughts on this ruling.

December 1, 2021

In this episode of Legally Sound | Smart Business by Pasha Law PC, Nasir and Matt cover the Business of Healthcare. There is more to the healthcare industry than just doctors and nurses. Many Americans have health insurance to cover their yearly needs, but most Americans are not aware of what really goes on behind…

October 12, 2021

In our latest episode, Nasir and Matt are covering the legal issues on Social Media. The average person spends most of their day on social media, whether they are scrolling for hours or publishing their own content. However, just because you publish your own content on Instagram does not equate to you owning that image….

September 28, 2021

What is a Non-Disclosure Agreement, and when do I need one? In this episode, Nasir and Matt shares why you need to use Non-Disclosure Agreements, basic facts about NDA’s, and discuss about the infamous Jenner-Woods story. Having the right Non-Disclosure Agreement in place not only protects you and your business, but it also makes the…

June 16, 2021

Covered in this episode of Legally Sound Smart Business are some typical business mistakes blunders small businesses often make and how to avoid them. Blunder #1: Copying and pasting agreements It may sound like a good idea at the time, but this blunder comes with hidden pitfalls. Having an attorney draft terms that are specific…

February 4, 2021

How you terminate an employee can make the difference between a graceful transition to avoidable negative outcomes like a dramatic exit or even a lawsuit. We gathered a panel of experts and asked them – is there a “right way” to fire an employee? We would like to thank our guests for this episode: Amr…

December 2, 2020

The COVID-19 pandemic has turned nearly every aspect of life on its head, and that certainly holds true for the business world. In this episode, Matt and Nasir explain how the early days of the pandemic felt like the Wild West and how the shifting legal playing field left a lot open to interpretation and…

November 16, 2020

After plenty of ups and downs, our buyer has finally closed on the purchase of their business. While we’re marking this down in the ‘wins’ column, it never hurts to review the game tape. In this final episode, our hosts, Matt Staub and Nasir Pasha, return to the deal almost a year later to reflect…

September 15, 2020

The ink is drying on the signature line and things are looking great for our buyer. After so much hard work, the finish line is in sight and the cheering within ear shot.   Though the landlord is still serving friction, things seem safe to move forward and for now, our buyer will be keeping…

July 31, 2020

Though things are coming along well, the journey would not be interesting if it was purely smooth sailing. After our buyer opens escrow, they are forced to push the closing date back when suddenly a letter from an attorney was received claiming the business, we are buying has a trade mark on the name!  Now…

June 12, 2020

With frustration at an all-time high and professionalism at an all-time low, our friend the Buyer has “had it” with the Seller and quite frankly their lack of knowledge. At present our Buyer is rightfully concerned that the latest misstep from our loose-lipped Seller will threaten not only the entire operation of the businesses but…

May 11, 2020

As we go deeper into the buying process, we start to uncover more challenges from our seller and encounter some of the wrenches they are tossing our way. When we last left off in episode three our team was knee deep in due diligence for our buyer, had already penned and signed the Letter of…

April 4, 2020

One word–interloper! When a new mysterious broker enters the transaction and starts to kick up dust, Nasir and Matt take the reins. The seller signed off on the letter of intent (see episode 2), yet this “business broker” serves only friction and challenges by refusing to send financials, whilst demanding more of a firm commitment…

April 4, 2020

Just as most stories and deals start out, everyone is optimistic, idealistic and full of hope for clear skies. It’s a perfect outlook with a perfect setup for the ups and downs yet to come. Peek further behind the curtain and into the first steps of buying a business: the letter of intent. After the…

April 4, 2020

When a savvy buyer hears opportunity knocking to purchase a prime positioned business, she decides not to go it alone and taps in the professionals to help navigate what could potentially be a fruitful acquisition. “Behind the Buy” is a truly rare and exclusive peak into the actual process, dangers, pitfalls and achievements, that can…

August 7, 2019

GrubHub is subject to two “matters of controversy” that have likely become common knowledge to business owners: “fake” orders and unfriendly microsites.

May 28, 2019

In this podcast episode, Matt and Nasir breakdown the legal issues of the subscription industry’s business on the internet. Resources A good 50-state survey for data breach notifications as of July 2018. California Auto-Renewal Law (July 2018) Privacy Policies Law by State Why Users of Ashley Madison May Not Sue for Data Breach [e210] Ultimate…

March 12, 2019

In recording this episode’s topic on the business buying process, Matt’s metaphor, in comparing the process to getting married probably went too far, but they do resemble one another. Listen to the episode for legal advice on buying a business.

December 3, 2018

Nasir and Matt return to discuss the different options available to companies looking to raise funds through general solicitation and crowdfunding. They discuss the rules associated with the various offerings under SEC regulations and state laws, as well as more informal arrangements. The two also discuss the intriguing story about a couple who raised over…

July 24, 2018

Flight Sim Labs, a software add-on creator for flight simulators, stepped into a PR disaster and possibly some substantial legal issues when it allegedly included a Trojan horse of sorts as malware to combat pirating of its $100 Airbus A320 software. The hidden test.exe file triggered anti-virus software for good reason as it was actually…

April 17, 2018

Attorneys Matt Staub and Nasir Pasha examine Mark Zuckerberg’s congressional hearings about the state of Facebook. The two also discuss Cambridge Analytica and the series of events that led to the congressional hearings, the former and current versions of Facebook’s Terms of Service, and how businesses should be handling data privacy. Full Podcast Transcript NASIR:…

March 10, 2018

The Trump presidency has led to a major increase in ICE immigration enforcement. It’s critical for business owners to both comply with and know their rights when it comes to an ICE audit or raid. Nasir, Matt, and Pasha Law attorney Karen McConville discuss how businesses can prepare for potential ICE action and how to…

February 5, 2018

New years always bring new laws. Effective January 1, 2018, California has made general contractors jointly liable for the unpaid wages, fringe benefits, and other benefit payments of a subcontractor. Nasir and Matt discuss who the new law applies to and how this affects all tiers in the general contractor-subcontractor relationship. Click here to learn…

January 2, 2018

With a seemingly endless amount of new mattress options becoming available, it is unsurprising that the market has become increasingly aggressive. As companies invest in more innovative solutions to get in front of customers, review sites, blogs and YouTube videos have moved to the forefront of how customers are deciding on their mattresses and how…

December 7, 2017

In recent months explosive amounts of high profile allegations of sexual harassment, assault, and varying acts of inappropriate behavior have transcended every sector of our professional world. With a deluge from Hollywood and politics, and the private workforce, accusations have inundated our feeds and mass media. This harassment watershed has not only been felt within…

November 16, 2017

If you are not familiar with the EB-5 program started in 1990 to give green cards to certain qualified investors in the United States, then you may not have been alone a few years ago. Currently, the EB-5 program has since exploded since its inception and now hits its quotas consistently each year. The program…

October 10, 2017

Government requests come in multiple forms. They can come in as requests for client information or even in the form of investigating your company or your employees. Requests for Client Information General Rule to Follow Without understanding the nuances of criminal and constitutional law and having to cite Supreme Court cases, any government requests for…

August 24, 2017

Nasir and Matt suit up to talk about everything pertaining to employee dress codes. They discuss the Federal laws that govern many rules for employers, as well as state specific nuances in California and other states. The two also emphasize the difficulty in identifyingreligious expression in dress and appearance, how gender-related dress codes have evolved…

June 28, 2017

Nasir and Matt discuss the life cycle of a negative online review. They talk about how businesses should properly respond, how to determine if the review is defamatory, the options available to seek removal of the review, how to identify anonymous reviewers, whether businesses can require clients to agree not to write negative reviews, and…

June 7, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Mattbreak down social media marketing withguests Tyler Sickmeyer and Kyle Weberof Fidelitas Development. They first discuss contests and promotionsand talk about where social media promotions can go wrong,when businesses are actually running an illegal lottery, and the importance of a soundterms and conditions. Next, they…

April 3, 2017

On this episode of the Ultimate Legal Breakdown, Nasir and Matt go in depth with the subscription box business. They discuss where subscription box companies have gone wrong(4:30), the importance of a specifically tailored terms and conditions(6:30), how to structure return policies (11:45), product liability concerns (14:45),the offensive and defensive side of intellectual property (19:00),…

February 1, 2017

Nasir and Matt discuss the suit against Apple that resultedfrom a car crashed caused by the use of FaceTime while driving. They also discuss howforeseeable use of apps can increase liability for companies. Full Podcast Transcript NASIR: Hi and welcome to Legally Sound Smart Business! I’m Nasir Pasha. MATT: And I’m Matt Staub. Two attorneys…

January 5, 2017

The guys kick in the new year by first discussing Cinnabon’s portrayal of Carrie Fisher as Princess Leia soon after her death, as well as other gaffes involving Prince and David Bowie. They alsotalk about right of publicity claims companies could be held liable for based on using someone’s name or likeness for commercial gain.

December 22, 2016

Nasir and Matt discuss the recent incidentat a Victoria’s Secret store where the store manager kicked out all black women after one black woman was caught shoplifting. They then each present dueling steps businesses should take when employees are accused of harassment.

December 8, 2016

Nasir and Matt return to talk about the different types of clients that may have outstanding invoices and how businesses can convert unpaid bills to getting paid.

November 10, 2016

After a long break, Nasir and Matt are back to discuss a Milwaukee frozen custard stand that is now revising it’s English only policy for employees. The guys also discuss how similar policies could be grounds for discrimination and what employers can do to revise their policies.

October 6, 2016

The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.

September 29, 2016

Nasir and Matt discuss the racial discrimination claims surroundingAirbnb and how it’s handled the situation. They also discuss some practical tips for businesses experiencing similar issues.

September 8, 2016

Nasir and Matt discuss whyAmazon seller accounts are getting suspended and banned without notice and how business owners can rectify this situation through a Corrective Action Plan.

August 25, 2016

Nasir and Matt talk about the accusations surroundingfashion giant Zararipping off the designs of independent artists like Tuesday Bassen and howsmaller companies can battle the industry giants.

August 18, 2016

Nasir and Matt discuss Brave Software’s ad replacing technology that has caught the eye of almost every national newspaper and has a potential copyright infringement claim looming. They also welcome digital marketing expert Matt Michaelree to speak on the specifics of what Brave is attempting to do and whether it has the answers moving forward.

July 28, 2016

Nasir and Matt discuss the sexual harassment lawsuit filed by Gretchen Carlson against Fox CEO Roger Ailes. They also talk aboutthe importance of sexual harassment training and properly handling such allegations in the office.

July 15, 2016

Nasir and Matt talk about the changes at Starbucks that have led to many disgruntled employees and customers.

We represent businesses.
That’s all we do.

Oh, and we love it.

We love our work. We love reviewing that lease for your new location. We thrive on closing that acquisition that nearly fell through. We’re fulfilled when we structure a business to grow, raise capital, and be legally protected.

We focus on developing close relationships with our clients by being like business partners. A partner who provides essential, personalized, proactive legal support.

We do all of this without utilizing the traditional billable hour model. You pay for the value we bring, not the time spent on calls, emails, and meetings.

Our team is made up of attorneys and staff that share these values and we are retained by clients who want the same.

Pasha Law PC operates in the states of California, Illinois, New York, and Texas.

Meet Our Team

Fractional General Counsel Services

Pasha Law Select offers the expertise of a high-end general counsel legal team for every aspect of your business at a fixed monthly rate. Pasha Law Select is deliberately designed to allow our legal team to be proactive, to anticipate, and to be comprehensive in serving our clients. To be great lawyers, we need to know our clients. We can’t know our clients unless we represent a select number of clients in the long-term. This is Pasha Law Select.

Learn More