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Nasir and Matt delve into the recently filed lawsuit by a sleeping fan against ESPN.  The then answer the question, "Is it illegal for an employer to not pay an employee for training for a job? This is an hourly wage job, not contract. The location of the job is in California."


NASIR: Welcome to Legally Sound Smart Business.
This is Nasir Pasha.
MATT: And this is Matt Staub on a dead sprint right now.
NASIR: Slow down, slow down.
Welcome to our podcast where we cover business legal in the news and answer some of your business legal questions that you, the listener, can send in to and also don’t forget to include your location because that gives us an idea of which law applies because every state has its own law.
MATT: That’s true. It does make a big difference.
NASIR: And sometimes city.
MATT: We only know a couple of states. Hopefully only people are sending in the states that we know.
NASIR: Yes, Alaska and Cuba. Wait, Cuba’s not a state.
MATT: All right.
NASIR: That’s only one state then.
MATT: So, our Alaskan audience.
I give credit to my wife for finding this story – even if she doesn’t listen to the podcast. She’s never going to hear the credit I’m giving her. T
There’s always humorous lawsuits but this is a pretty funny one. This was pretty recently. I forget how long ago. In the last week or so, there was a Yankees-Red Sox game. For you, Nasir, and for other people that don’t watch baseball, baseball games are long but games between these two teams are known to be extremely long – like, four hours plus, every single game.
NASIR: Oh, really? I didn’t know that.
MATT: It’s a big rivalry and so there’s a lot of pitchers changing and all that stuff. But this was in the fourth inning so I don’t really know if he has an argument but basically this fan fell asleep in the stands on the top of the fourth inning and it was nationally televised on ESPN and the camera cut to him, sleeping, and then the two announcers who – you know, like I said – were the ESPN announcers just started making fun of this guy, cracking jokes with him. I listened to it, nothing too bad. But now this guy is suing ESPN for $10 million defamation lawsuit for the avalanche of disparaging words over his nap that he was taking in the stands. I don’t know. I think this is pretty hilarious. This just seems ridiculous that he would bring this lawsuit because he fell asleep and they were making a couple of cracks at him.
NASIR: I’m trying to find the actual comments and the ones that I’m reading seem so benign, you know? Like, were they actual false statements? I mean, there are laws of privacy where putting someone in a false light and so forth but this is in a public place and disparagement is not a crime or illegal but defamation is and saying something that’s not true is, but that has to be a kind of a statement of fact and not an opinion and it seems they were, like you said, just kind of making cracks and jokes and making light of the fact that he’s falling asleep at a game which obviously baseball is one of the most interesting live action games in the world – of course, next to soccer which apparently you think is less interesting.
MATT: Yeah, I did like how they tried to reach out to this guy. He wasn’t able to be reached – probably because he was sleeping – but his mom was able to be reached and her response was, “You should send the message that idiots need to stay out of people’s business and not make fun of people who are harmless.” I’m glad she gets the whole point of this lawsuit.
NASIR: Yeah. Well, there’s truth to that, too. I mean, on one hand, I do feel kind of bad because we do live in an age where people can be put into like this public light. You know, all of a sudden, there’s videos on YouTube and it has tens of thousands of hits and now he’s known as the guy that fell asleep. It kind of reminds me of a Seinfeld episode when George was at a tennis game – probably a Wimbledon match or something like that.
MATT: Yeah, eating ice cream.
NASIR: He was eating ice cream, right? Had ice cream all over his face then his friends and other people started putting out, “Hey! I saw you on the TV with ice cream all over your face.” You’ve got to laugh it off, I suppose.
MATT: Not to correct you but I’m guessing it was probably the US Open since that’s in New York and the show is set in New York. Wimbledon’s in London, so…
NASIR: Yeah, that’s true. Yeah, that’s a very good point.
MATT: But I don’t remember. You could be right.
NASIR: No, no, no, I think you’re right. If the question is whether or not I said something correct about sports, I think we know the answer.
MATT: We’ll take my word over yours.
NASIR: Yeah, exactly.
MATT: I mean, I don’t even know if ESPN is even going to try to settle this – they might just to get it to go away – but it seems like they’ll win this case.
NASIR: Yeah. I mean, even his attorney says this is going to be settled – maybe even for a walk-away or something small, miniscule, or whatever – not even close to $10 million, obviously.
MATT: The funny thing too is I don’t think a lot of people would have even known about this had he not brought the lawsuit. So, just by bringing the lawsuit, he’s brought way more attention to it because, now, the stories that I see are because he sued – not because he fell asleep – because fans fall asleep all the time!
NASIR: Yeah, you’re absolutely correct. Actually, that’s a very good lesson for defamation and we talk about this a lot from a business context – whether it’s Yelp or not – and there’s kind of a lesson where, even if someone has disparaged you or defamed you, by putting it into a lawsuit, that goes into a permanent public record. Sometimes, we live in the age where even if what people allege is not true, by bringing attention to it and disputing it, some people may say, “Okay, where there’s smoke, there’s fire, and it might be true.” Maybe you’re giving more publicity to it.
Trust me, we’ve had to deal with this issue many times and it sucks when someone does say something bad about you online or even in the public and it hurts your business and so forth and how to deal with that has to be on a case-by-case basis but, like Matt said, making it national news, I definitely would not have even come across it if this wasn’t publicized like this.
MATT: Yeah, I still think it’s pretty funny.
NASIR: Yeah, you like laughing at the weak.
MATT: All right, question of the day.
“Is it legal for an employer…” All right, I think this is worded weird.
NASIR: “Is it legal for an employer to not pay an employee for training for a job? This is an hourly wage job, not contract.” I think they mean not a contractor? I don’t know. The location of the job is in California.
MATT: Okay. First of all, well, I was going to say, if you don’t pay someone for training, they’re probably going to hate you but, at the same time, if you run through, if you have a high turnover rate, I can see you not wanting to pay people for training if 50 percent are going to drop out within the first month, then you’re just throwing money away.
NASIR: Yeah, and I’ve seen that’s common when you have sales training. A company that has high turnaround often gets into trouble with this for not paying for training.
MATT: So, what is the standard? I guess we have a federal standard and we have a state standard – in this case, not Alaska so we’re going to take our best shot at it but California.
NASIR: This is in Cuba, no?
MATT: Cuban law states…
So, federally, they’re saying training, well, I guess, attends at lectures, meetings, training programs, similar activities need not be counted as working time – only if four criteria are met. It is outside normal hours. It is voluntary, not job-related, and no other work is concurrently performed.
NASIR: Think of this as like a picnic or something that’s not voluntary or a conference that is not related to your job or something. Only in those cases where you’re not paid.
MATT: Yeah, three of these things seems pretty easy to do. Like, voluntary, you’re not going to have any problem getting that; no work concurrently performed, you should be fine; outside normal hours should be fine. Like, the not job-related aspect seems a little bit…
NASIR: Yeah, that’s general because anything can be construed as job-related. You’re right. But, I mean, there is a standard to that. Well, that’s the federal standard. And then, state standard is not dissimilar except California goes through this eleven factor test and I don’t think we’re going to go over that but it’s generally this – it’s kind of like an intern, right? The whole paid-unpaid intern and so forth. If it is job-related and you’re training them to do a job function – like, it seems like they’re doing in this case – you have to pay them and you pay them minimum wage. Now, let’s say they’re making $20 an hour regularly, you can reduce the pay for training to minimum wage – to $9.00 an hour now in California – and that’s an alternative but they’re still entitled to minimum wage and breaks and all that.
MATT: And what I said at the beginning, I mean, unless you’re in one of those businesses where you just have a really high turnover rate with people, I mean, just pay them for the training. It can’t be too long a period of time.
NASIR: Yeah, and even if you’re in that kind of industry with a high turnaround rate and you can’t afford to pay them because of the dropout, you need to figure out a way to weed out your application process, right?
MATT: True.
NASIR: For example, you can have them, to a certain extent, take tests and certain evaluations without paying them – just through the interview process. But, also, don’t turn your interview process into a training program. That’s also a mistake. Sometimes, what they’ll do is they’ll kind of integrate into both and then train them and then see how they’re doing and so forth. That’s also not acceptable. And then, next thing you could also do is create a training program that is separate for your company that gives them certification that they may actually pay for. But that could be troublesome because you have to make sure you do it right, that it’s not something you dive in with simplicity.
MATT: Yeah, definitely.
NASIR: So, be careful with that.
MATT: Like you’re almost just digging yourself in a whole at that point.
NASIR: I know, I just realized, people are going to misconstrue that and go the wrong way because companies have gotten into trouble in that regard as well.
MATT: I don’t know. My first summer at law school, I was working two jobs and not only was I not getting paid, I was actually paying to work because it was through the school. So, I had to pay money because I was getting credits for it so I was paying them to work there which is pretty ridiculous.
NASIR: Yeah.
MATT: I always thought that was humorous.
NASIR: I’m pretty sure I had an unpaid internship that should not have been unpaid when I first started law school.
MATT: Yeah.
NASIR: And I’m thinking about going back and getting back millions of dollars from that offer.
MATT: Yeah, I’m still waiting for you to pay me so I’m holding out.
NASIR: For this podcast.
MATT: Hopefully, one day.
NASIR: Well, this podcast is good training for being an attorney. That’s what we’re doing.
MATT: Yeah, exactly.
NASIR: And it’s outside work hours and it’s not related to your job of voyeuring because it has to do with podcasting.
MATT: The early afternoon, late morning time during the week is not during work hours.
NASIR: Normal work hours.
MATT: Yeah.
NASIR: Okay. Well, thanks for joining us. Don’t forget to leave iTunes reviews – positive ones, of course. I think that’s it. Do I have any other reminders for anyone? I feel like we’re forgetting something at the end of the week.
MATT: I think that’s everything. We told them to send questions in, give reviews.
NASIR: Oh, and, once in a while, we get submissions for topics to cover, too. If you have something like that or also a guest that you’d like to get on, you know, let us know. That’s also very helpful.
MATT: Yeah, that’s true.
NASIR: You seem to hate that idea. You don’t want contributions from them?
MATT: When we get submissions from people, it’s usually pretty entertaining stuff so I welcome them.
NASIR: That’s true. I mean, your wife did submit today’s topic.
All right. Well, thank you for joining us. Thanks for listening.
MATT: Yeah, keep it sound and keep it smart.

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Legally Sound | Smart Business covers the top business stories with a legal twist. Hosted by attorneys Nasir N. Pasha and Matt Staub of Pasha Law, Legally Sound | Smart Business is a podcast geared towards small business owners.

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