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 the constraints of high profile communities. It has affected every echelon of our society and impacts businesses, religious institutions, education, entertainment and government. We have seen a multitude of brave faces, who Time Magazine calls the Silence Breakers, come forward and stand up to Cosby, Weinstein, Trump, Ailes, Conyers, Moore and Spacey. No longer can businesses neglect the need to educate and protect themselves as well as their employees.

This pivotal moment is a call to action for business owners, supervisors and employees to focus on the policies and culture they contribute to in the workplace.; In this episode Nasir and Matt take a moment to reorient its listeners to well established legal principles as it applies to sexual harassment, especially in the current environment.

Full Podcast Transcript

NASIR: Welcome to our podcast!

My name is Nasir Pasha.

MATT: And I’m Matt Staub. Two attorneys here with Pasha Law, practicing in California, Texas, New York, and Illinois.

NASIR: And this is where we cover business in the news and add our legal twist to that news.

Today, we’re talking about, oh, so topical, right?

You know, we try to stay as topical as we can, but this is almost too much. I bet you, when this is coming out, it’s not even close to being over, and I’m trying to figure out a name for it. Basically, what’s going on with sexual harassment and sexual assault allegations that are going on in a high-profile sense. But we’re going to take a look at it more on a practical perspective in how it actually still applies. In a sense, the law hasn’t changed here. The law may be changing, but this stuff has been going on for a while.

We can talk about those that are business owners, how you can protect your business and protect your employees from this kind of environment. I think that’s very important right now.

MATT: Yeah, I think the caveat should be, if you’re a business owner that’s participating in this sexual misconduct, this probably isn’t the episode for you. The advice for that’s pretty simple.

NASIR: Yeah, that’s a very, very good caveat. But, at the same time, just because you made mistakes in the past doesn’t mean that you can’t change the culture and environment you have in the future as well. We’re going to talk a lot about that. We’re going to talk about just the general nature of the law and where it’s changing and also talk about some of the more salacious topics that are going on in the news as well.

MATT: Sure. I think what’s helpful to start out is just to kind of lay out or define what exactly sexual harassment is.

NASIR: Oh, I was going to say, what are people calling this? I don’t want to call it a movement because that doesn’t make sense. They call it a watershed moment.

MATT: Yeah.

NASIR: Is it a sexual harassment watershed moment? I’m not sure.

MATT: We have the whole episode to figure this out.

NASIR: Okay, I’ll come up with something.

MATT: The reason I think it’s helpful to define it – and we’re kind of seeing this now – obviously, there are some allegations that are pretty severe and some that are not as severe, but the importance is that it’s a very broad definition of what can be considered sexual harassment.

Generally speaking, it’s unwanted sexual advances or visual, verbal, or physical conduct of a sexual nature and that’s both same sex and different sex that we’re dealing with here.

Generally speaking, what would be behavior that would fall under this? You can kind of put it into categories. I’ll start with the more obvious. I’ll start with the most severe and kind of work our way down. One’s a little bit more grey area.

Making or threatening retaliatory action after receiving negative response to a sexual advance which we’ll get into, the retaliation aspect of it is pretty key. Offering employment benefits in exchange for sexual favors – that one’s obvious.

Physical conduct, touching, assault, impeding or blocking movement is another obvious one. Verbal conduct which I think a lot of people would think about that when they hear these stories – derogatory comments, jokes – basically anything that Michael Scott’s ever said on The Office for the most part. Comments about someone else that’s sexually degrading and things of that nature.

And then, visual conduct, too. This can kind of be a trickier one, but leering or making sexual gestures, displaying sexually suggestive objects or pictures, cartoons, posters, et cetera.

Again, I’m kind of intentionally keeping things a little bit light-humored on The Office and Michael Scott references just because it’s a very serious subject and we’ll get into why, but there’s a reason that people like the show like The Office. It’s so blatantly wrong and obvious that it’s wrong that that’s how people see the humor in it. I don’t want this to come off like we’re laughing at it. It’s just making that point.

NASIR: You’re bringing up a good point because, when you watch the office, it does poke fun of the aspect of all these rules that lawyers create of why you do or don’t do something. Everyone’s kind of too strict on these things. But they try to toe that line – the difference between, frankly, what’s funny and not funny. It’s actually a good demonstration that, if you take another set of people and watch The Office, they’re not going to see the same humor and that’s kind of the point.

When it comes to unwelcome-ness of these sexual harassment acts – you know, you just went through them – it is very fact-specific and it’s in the eyes of the beholder in the sense that unwelcome-ness. What makes it unwelcome? That’s one of the part of the legal standard is.

If I asked you, “How do you show that the person did not welcome this or was unwelcoming to this?” It’s not an easy thing to show either way to prove that it was unwelcome or to prove that it was welcome. That’s part of the issue of why people, from a perspective of those that actually perpetuate this kind of behavior. They claim that they don’t have an understanding. “Well, I thought there was nothing wrong with it.” “I thought it was funny.” It’s just so ambiguous.

That’s why we lawyers were like, “Look, just to be safe, create strict guidelines.” It’s not to say, “No fun in the workplace!” but there are some clear things that you can steer away from. Frankly, it’s just better not to say anything. Just don’t talk.

MATT: That’s a lot of the justifications or excuses that we’ve seen. “Oh, I didn’t realize it was coming off that way.” But there are situations like the Al Franken situation where we just have photo evidence of something that’s clearly unwelcome. Has he said a response? I don’t know how he even gets out of that situation – at least by the time we’re recording. I don’t know if he’s said a response.

NASIR: As of right now, he has apologized. It’s hard to understand exactly what he’s acknowledging and apologizing for. I don’t think he’s being specific, but he’s definitely apologized. For those who don’t know what we’re referencing, there’s two photos of him basically making inappropriate gestures. Frankly, in any workplace, some of the commentary I’ve heard is that he was a comedian at the time. Now, there’s been allegations where he wasn’t a comedian too so I’m not sure if that necessarily applies.

Speaking of workplaces, there are standards involved. A good example – and I was looking into this because I was thinking about it – is The Howard Stern Show. If anyone listens to the Howard Stern radio show, most people realize he’s on serious radio where the same kind of FCC regulations don’t apply when it comes to using profanity and talking about certain subjects. If you’ve listened to the show, it can get pretty raunchy – both within that radio in the sense that we’re talking about everything from nudity to just gross stuff, right? There’s no doubt that would cross lines ten feet over in any workplace. But, of course, those are all employees of Sirius Radio of The Howard Stern Show. Yet, how do they get away with it?

I was looking into it. Apparently, when it’s in the studio, they actually lock the doors of the studio to the extent that the behavior within that studio does not go beyond that studio. A good example was they got in trouble because someone was streaking inside the studio and they streaked outside to the offices of Sirius Radio and that was inappropriate. And so, this is The Howard Stern Show that’s part of the entertainment and that’s a separate category. But, once you leave, you’re exposing this environment to other people that’s not part of the workplace and it’s unwelcome. That’s the difference. It kind of gives you a little bit of a better idea of this unwelcome-ness standard.

MATT: I think that all came about, what sparked your interest in that was that waiver that was posted in regard to the Barstool Sports and just basically agreeing that, “Look, it’s going to be offensive here and I’m acknowledging it and I’m signing away my opportunity to do anything about it, et cetera.”

NASIR: I don’t know your reference. What’s Barstool Sports?

MATT: It’s a website about sports that has some aggressive takes at times. One of the people there posted some waiver that they wanted her to sign, basically saying, “We work in a creative work environment. There’s offensive speech. I’m going to be exposed to things that are explicit.” All this stuff. I think that’s kind of what it was.

NASIR: That also goes into, like, one of the big industries where sexual harassment is very prevalent is actually in the service industry. This reference, by the way, Logan gave it to us and, apparently, it’s from Cosmopolitan Magazine. I don’t know where they got it from, but that’s our source. Apparently, that industry – the service retail industry – and a lot of the harassers are not necessarily the employees but also from the customers themselves. I can imagine, whether it’s restaurants and you’re a waiter or waitress, these kinds of establishments.

MATT: As a business owner, where does it all start?

To me, it’s education. In some situations, there’s training. There’s mandatory training. But education is critical in all this. I mean, it’s the starting point to everything. When I say education, it’s not only having a sexual harassment policy in place. As we’ve said many times before, having a policy in place, implementing it, following it, and then acting appropriately after the fact.

If there’s a situation where an employee comes to you as the owner of this company and says and alleges something against another employee and even a supervisor, you have to take it seriously, obviously, and you have to follow the policy if in place, and all of the things that went through the training basically need to be followed exactly how it was planned from the beginning. That’s why I said education is really the starting point for all this to me.

NASIR: I agree. I think some people say, “Hey, look, everyone should know what the rules are and just act appropriately.” But, frankly, that’s just not the case. You know, people don’t know what the rules are, people don’t know what the lines are, people feel that the way that you may behave at home is the same way that you behave at the workplace. The reality is, when you have a workplace where multiple people from different cultures, different backgrounds come together, the standards of what’s welcome and not welcome is different. That’s kind of the point.

And so, the only way to really shed those lines is through education. I think you mentioned education. I think the second thing – again, I think this is kind of the same thing – is just the culture you’re creating in the workplace. We’ve talked about corporate culture and the importance of that – not only from a legal risk management perspective but from a business success perspective as well.

If you have a culture where that kind of behavior is tolerated, then it’s going to be promoted and you’re bound to happen. I’ll tell you this, without disclosing any details, we have clients that we know those problems are going to occur just because of the type of culture they flourish within their workplace. And then, there’s another client that that’s the last thing we would expect from that particular client.

One of the things that’s common it seems like, and it’s just kind of unfortunate with this watershed moment of sexual harassment allegations – I’m getting to a term here soon – which is a lot of the people that have alleged to have committed these crimes or have admitted to it or actually have been found to be guilty of them, whatever they case may be, there was always rumors. There’s always like, “Yeah, I’ve heard this and that this is the type of person.” Whether it’s Roy Moore was supposed to be looked after, I guess I just read that police officers were supposed to keep him away from the high school cheerleaders or something. Whether that’s rumor or not, I don’t know. But the point is there were rumors about that. It’s kind of the same point of culture. You know that certain companies are going to be susceptible to that just because of how they behave in certain situations. It’s what you observe and what you don’t observe that you don’t know, of course, and that’s where you really get into problems.

MATT: Yeah, and that’s the classic Harvey Weinstein example. Everybody knew this. There were even jokes about it in these monologues for these awards shows. He was there.

NASIR: That’s true.

MATT: It was just a very known thing, but no one did anything that serious about it because nothing happened until recently.

The point you made is critical and, without disclosing anything, how it works is exactly what you said. It’s from the top down. It starts at the top of the company and they set the standard. Again, supervisors, especially in California, are held to a pretty high standard with this. If they’re the ones that are going to be causing the problems and they set the example, well, there’s a pretty good chance that other employees are going to do similar things. But, if the top sets the standards, “Look, this is how it’s supposed to be, this is not acceptable,” someone says something, “This isn’t acceptable,” it’s well-known that you’re going to have a lot better chance of not running into these issues. Moving forward now, you can’t prevent against a rogue employee just saying something or doing something inappropriately. Even if you do your best, you can’t prevent that from happening 100 percent of the time.

NASIR: The silver lining is that, even if you have a rogue employee that does something like that, it doesn’t automatically mean that you, as an employer, are automatically responsible. Here, obviously, everyone wants to punish those that are guilty. They don’t want to punish the innocent, so to speak.

And so, under what circumstances is the employer liable for something that an employee does?

Obviously, if you’re the CEO of the company or a small company and you’re the sole owner, we’re not talking about that. We’re talking about a company that has multiple layers – whether it’s different departments with supervisory heads or what-have-you. One is employer liability. Now, it’s different per jurisdiction.

And so, the easiest way to look at it is to look at California because it’s the strictest policy within the country and I really believe that everyone should basically act as if they’re in California when it comes to this issue. And so, here’s the rule – if the harassment is between two employees that are coworkers – meaning neither one has a supervisory role over the other – then the employer liability is not automatic. There has to be some kind of knowledge that this was going on or something that would indicate that this was going on or that one of the party’s complained and the employer didn’t do anything about it. Or when they complained, whether it’s true or not, they retaliated against them. We’ll talk about retaliation in a second. That’s between two coworkers.

But, if one of the parties – the harasser, the alleged harasser – is a supervisor and there’s a definition of a supervisor and I’m not going to name it off the top of my head, I don’t know the exact definition but it’s something to the effect of, if you control the hiring, firing, promotion, demotion, I think it even says, if you indirectly have that power – in other words, you have the power to recommend these kinds of actions to occur – then you’re a supervisor. If the supervisor is the one that’s the harasser, the employer is automatically strictly liable and responsible for that. Why? The idea is that, if you’re going to have someone in charge of other people, then you better make sure that those people are the faces of the company and they represent the company in the best possible manner. If they mess up, you mess up. It’s something called vicarious liability and it’s a strict liability standard – meaning, even if you didn’t know about it, you’re still responsible.

MATT: Yeah, exactly. Like you said, California, if it’s a supervisor which, just to follow-up with that, anyone with the authority to hire, fire, assign, transfer, discipline, or reward other employees. It’s pretty broad. It’s strict liability.

NASIR: I was pretty close, actually.

MATT: Outside of California, the federal standard, it’s vicarious liability, but there’s an affirmative defense based on the reasonableness of the employer and the employee’s conduct.

So, like you said, good advice is, even if you’re not in California, treat it like it’s California. Always treat it as the highest standard and you’re going to be better off than had you not done that.

NASIR: Yeah, and there are defenses and I don’t know what it is. Just because of the nature of what’s going on right now, I feel like it’s just not appropriate to focus on the defenses. I just want to touch on them a little bit.

For example, when it comes to coworkers, a lot of handbooks – of course, we present this, too – you have an open-door policy. If the one that’s being harassed doesn’t do anything about it and doesn’t tell anyone and kind of just keeps it quiet, it’s hard to really put any liability on the employer in that case, especially if you have a policy that allows them to complain – whether you have a hotline, whether you have an HR representative that is available. This is the so-called open-door policy where companies get into troubles where they say they have an open-door policy but, if it’s the supervisor that’s actually doing the harm or someone that is a person you would report to, somehow you would feel embarrassed because they’re good friends with the person that is harassing and these kinds of things. That’s where it can pose a problem.

But the reason I kind of want to mention this – again, I didn’t want to get into the defenses too much – that it is very important as part of the prevention, part of creating the culture, part of the education is to have those channels for those victims to be able to go to. Think about, if they can’t go to someone in the company, do you want them going to someone in the company or basically to their own attorney? Frankly, if it’s a small company, you can even give the number of your own corporate council as someone to report this to as well. I mean, there’s a lot of different options if you don’t have an HR department, for example, or you’re afraid to create a hotline. I think there’s actually even services that do this. I can’t vouch for their reliability and if it’s recommended or not, but there’s definitely other options out there.

MATT: Just real quick, I know we talked about this earlier, but I said it starts with education and part of that is training. So, training can be mandatory. For example, in California, employers with at least 50 employees or independent contractors must provide two hours of sexual harassment prevention training to all supervisors once every two years. Now, I say that. But, to me, I think it’s beneficial to have the training for all employees, regardless of size or how many employees you have. Again, the more prevention you can put in place, the better chances that there’s not going to be a problem down the road.

Again, it’s even more critical if anyone in a supervisory role, but it’s always good to just do that and it’s a very minimal amount of training that needs to be done, even for the mandatory training. It’s a pretty small burden to take on from the employer’s standpoint, but it’s going to be well worth it down the road.

NASIR: I can’t help but not think about The Office episodes related to this. Again, it’s just good representations of what not to do. I mean, they just show a video. There’s actually a pretty, I don’t want to say strict requirements, but there are requirements of how the training should be done and who it’s being done by.

By the way, I just read an article in preparation of this of someone arguing why training doesn’t work. I think, with ineffective training, it’s true. It doesn’t work. You mentioned all employees. The purpose of training is not just to go through it. Again, for most people, it’s going to be a reminder. But, remember, not everyone is in the same background as you.

For those of you listening that’s like, “I would never do that and, if I saw something like that happening, then I would say something, et cetera, and I wouldn’t put up with that,” kudos to you. You know, a lot of us are in that position. But, obviously, this stuff goes on. And so, if you’re an employer, even if you think that that’s not something that you would tolerate, keep in mind that this is unfortunately not un-commonplace. In fact, again, citing from the same Cosmopolitan study, in a survey that they’ve done, 71 percent of women said they did not report sexual harassment in the workplace and 29 percent did, of course. I don’t know if that adds to 100 percent.

MATT: Well, that checks out at least.

NASIR: But, the ones that actually did report, 15 percent felt that the report was handled fairly. And so, I think that’s a very important statistic to understand that, even if you’re in a camp, I’ll tell you this, if I wasn’t in the profession I was in with my employer, I don’t think that I would ever, I feel like this doesn’t exist. I don’t see it myself. I’ve never experienced it even with immediate family members or immediate friends or family. And so, I’m kind of away from it despite my connection in my profession.

That means that this education has to go towards the people that it is going to be effective for. You do have to take it seriously yourself even if you think this is common sense.

I don’t know, Matt, if you feel the same way because I feel like sometimes I’m in a boat where, you know, I’ve been lucky in that respect, but I feel distant from it because of that lack of exposure which I think is a good thing, obviously.

MATT: It’s obviously good. The difficult part is working both sides of the equation here. The reason that it’s important is you could have an example of there’s an employee on the low end of the totem pole. They see this stuff happening or it’s even towards them. Well, they don’t want to tell their supervisor or even a higher up person in the company because it might adversely affect the way they’re treated and that’s obviously illegal. That’s retaliatory and that’s not allowed. But that’s the reason that it’s quid pro quo is one of the forms of the sexual harassment.

But, on the other side of the equation, we have maybe it’s a supervisor who’s basically doing this and this is also quid pro quo but, basically, they’re getting away with it because they know they hold that power, that leverage over these employees and they’re not going to say anything because, if they do, then I’m going to treat them differently as the supervisor. That’s why it’s so difficult for, really, everyone involved – everyone who’s not the person who actually participating in the sexual misconduct because it’s a fine line a lot of times and people, especially employees, feel like they have to make these judgment calls. But, again, retaliation, if you report it and then you’re retaliated against adversely, then it’s actually way worse for the employer. So, Hopefully, that would cause employees to speak up a little bit more. But, I mean, I understand it. It’s just hard to speak up sometimes in those situations.

NASIR: Very true.

Retaliation claims should never happen. In other words, if you’re an employer, if an incident like this occurs, talk to your lawyer. If any employer that had legal advice, they would never even accidentally retaliate because you kind of mentioned different ways that retaliation can occur. But even little things like cutting their hours or changing their job duties could be considered retaliation. Or not giving them a promotion. Or not giving them a raise. Or not giving them a bonus.

And so, you know, again, it’s a common thing we say about talking to your lawyer, seeking legal advice very early. If you don’t have a policy, get a policy. If you have never done training, get training done. If you suspect something is going on, talk to your attorney. Figure out how you can deal with it, even if it’s just suspicions for now. If it’s an actual complaint, you know, if you’ve never dealt with it before and never been walked through on how to deal with it, get help with that.

Not only is it a serious issue because there’s a victim involved, but also, from a liability perspective, it is a very costly legal issue. In fact, this kind of is a good segue in a sense that just the allegation itself, the legal cost to defend, unless you have EPLI insurance which is an insurance that most employers don’t have because it can be costly – or at least small businesses or small employers don’t typically have – EPLI would typically cover something like this, but sometimes it doesn’t. And then, the allegations themselves, just the reputation alone, even if they’re not true for that matter.

It kind of goes to what I wanted to make sure we talked about today which was, because of this watershed moment of sexual harassment in high-profile cases, there’s a few states, including California, New York, New Jersey, and probably some others as well that I’m not aware of which want to outlaw confidentiality clauses with settlement agreements as it ties to sexual harassment or sexual assault cases. It’s kind of an interesting prospect of litigation. The understanding is that one of the reasons why some of these men have been able to do these things repeatedly is because they’ve settled past lawsuits. And so, future victims had no idea this was an issue. In fact, I just read, and I can’t remember who they were alleging against but one of the victims was like, “I would have never came out. I thought I would have died with being the sole victim. But, when I found out about these other victims, I had to come out.” They had no idea. they thought they were the only person that this had happened to and they blamed some of these nondisclosure agreements that allowed these acts to occur.

As you know, Matt, confidentiality agreements or clauses are part and parcel to any settlement agreement.

MATT: Yeah, and it’s unfortunate that that’s been the case. Well, now, a lot of them are coming to light, but some of these people have been able to get away with this and paying people off and doing it through these confidentiality aspects of it and getting away with it. And so, I think that’s exactly what you’re talking about with why some of these states are trying to implement and basically get away from these and not allow them. That will hopefully open things up for the long-term of preventing these pay-offs.

Now, would it still happen? Probably, but it might at least stop it a little bit.

NASIR: Yeah, I think there’s some valid points when it comes to this kind of legislation in the sense that, if someone is a sexual harasser – whether it’s assault which is a crime versus a harasser which in the civil sense may not be criminal liability – in either case, would you not want to know about that? I mean, the idea that you might be susceptible to being exposed to that type of behavior – whether it’s in the workplace, whether it’s otherwise in the community, et cetera – there’s definitely an argument to that.

But I think the argument against or I should say the nuances of it is how do you also protect those that are innocent? I actually think that there’s an argument even for this legislation for them. I’m just kind of thinking out loud here.

When so-called innocent people settle, they’re settling because they’re like, “I don’t even want this allegation to come out. I’d rather just give them money. I know it’s unfair. They made these false allegations against me, but I’m going to pay it off anyway and just make it go away.” Sometimes, that client will say, “You know what? I want to fight it because I want to prove my innocence, but it’s going to be costly and people are still going to believe that I did it regardless, especially now in this environment, so I don’t want to do that.”

With this law, if they get rid of these confidentiality clauses, then these people that have been falsely alleged – and I’m not going to speak to how many because I think a lot of these allegations end up being true but there’s going to be some that aren’t – under those circumstances, because of the confidentiality not being an option, they may go out and fight it. They actually may go out to prove their innocence. But, if they don’t have the pocketbook and that’s really where the problem is, if they don’t have the pocketbook to defend and they’re innocent, then they may just pay it off anyway and get a settlement that won’t be confidential, and people are going to think, “Well, he agreed to the settlement, so he must have been guilty.” That’s a hard thing to swallow for someone that’s been falsely accused.

MATT: Yeah, and the difficult part too, particularly when we’re dealing with any sort of sexually charged claims, obviously, the more severe, the worse it is, with this as well. But it’s victims that don’t want to relive. You know, if you have to go through this, settling and getting out already, you don’t have to relive the whole, especially if it’s traumatic – even worse, like I said – you don’t have to relive this whole situation that happened, and I don’t think there’s really any right way to kind of classify this, but it’s interesting, to say the least.

NASIR: I think it’s definitely a difficult situation for everybody involved, but mostly the victims, of course.

MATT: Yeah, exactly.

NASIR: Quick takeaways, I think this is a good time to just take a reset. I’m not going to be necessarily saying that there needs to be new laws because the problems is that we have the laws, but when you have women and men that are afraid to report it, that’s an issue and that comes down to company culture and things of that nature. That’s not something laws can fix. And so, we, as a community, and within our reaches of our law firm and all the other advocates out there, there’s a lot of ways to just reset and really focus on this issue in a way that really protects victims and creates a culture that is positive and, again, not something that doesn’t mean you can’t have any fun, but an environment that is safe for everybody.

MATT: Yeah, I think that’s great advice.

Going back to what I said at the beginning, well, I think the reason that most people can get see the humor in a show like The Office when there’s things like this is it’s just so obviously wrong that that’s the aspect of it that makes it funny.

You know, I think we’ve laid out a good kind of road map to how to approach this. We didn’t need to tell you to take it seriously. I think that’s been very evident over the last couple of months of all the big names that have kind of fallen off and could disappear forever, especially with some of these individuals. It’s career-ending. And so, we don’t need to tell you to take it seriously. I think it speaks for itself.

Like I said, it starts with education, it starts from the top down. If you look at that, if you approach it from that, you’re off to a good start.

NASIR: One last thing – and I don’t want to ruin the positive ending – for those that are listening that just want to take a look at this from a very dollars and cents perspective, I’ll tell you, one thing that’s clear to me is that, from a risk management perspective, this is going to be the issue for the end of this year and next year for small and medium-sized businesses in a sense that it has started with these high-profile cases, but there’s very little doubt that the number of complaints that are going to get sent in to the Equal Employment EEOC the end of this year and next year is going to skyrocket. I have no doubt about that. The sexual harassment cases are going to skyrocket. And so, from a dollars and cents perspective, business owners that need that kind of encouragement, this is something that you’re going to have to deal with and deal with it quick.

MATT: Yeah, if I had to bet on it, I would definitely bet on that. I don’t know whenever this episode comes out but it’s like every week we get more and more names of people and just keeps like it’s never going to stop.

NASIR: We’re recording this the week of Thanksgiving and I think, every week day for the past six days or so, there’s been at least one new high-profile case and sometimes two people I don’t necessarily know but everyone from politics to Hollywood to musicians to whoever.

MATT: Yeah, not to go too long on this, but this past weekend, the Union Tribune which is the local San Diego paper just had a front-page photo and it just had the headshot of all the different – I think it was actually all males, I think – it was the whole front page basically of people. I didn’t even know if some of the people were even accused of stuff. You can’t keep track of it.

NASIR: Yeah, the news can’t cover everybody. We covered Bob Filner’s accusations in the workplace. We actually had a podcast for it and he had recent accusations for when he was a congressman, right? Bring it back home to San Diego.

MATT: That was just new, recent. That was brand-new allegations that just came out pre-dating his days in his brief stint as mayor.

NASIR: By the way, people keep talking about how this started with Weinstein. Do people say that? Because, I mean, if you think about it, I really think this started with Cosby because it went from Cosby to Roger Ailes and FOX News and then Bill O’Reilly and then Weinstein. Was it Bill O’Reilly or Weinstein first? I think Bill O’Reilly was first.

MATT: Yeah.

NASIR: He left FOX News.

MATT: I can’t even keep track.

NASIR: FOX News cleaned house. Also, if you recall, this may be tangentially related, Uber also had all these allegations of sexual harassment. Of course, Trump last year. It’s just amazing how this month or the later half of November or mid-November has been really kind of the height of it. I assume it’s the height. I think we’re at the height of it, but this has been something coming for the past couple of years.

MATT: I’m not going to name anyone for obvious reasons, but it would basically take some very well-known actor who had a squeaky clean career and was loved by everyone, I mean, you could think of some people that would fit this role, but it would basically take somebody like that of news to come out against them that was really damning for it to be a…

NASIR: I mean, one of the premier actors of our time – Kevin Spacey. I guess if you can find a bigger actor than that.

MATT: I’m saying there’s other actors who have a basically 100 percent approval rating from everyone. It would be somebody like that for news to break on them for it to get worse, I suppose.

Well, on that note…

NASIR: Yeah, okay. Well, that was a hard episode, actually, but I think we got something done. That’s good. Check that off. I think we got a topical episode off and hopefully it helped.

Thanks for joining us!

MATT: Yeah, keep it sound and keep it smart!


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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.
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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.

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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.

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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.

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