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Nasir and Matt end the week by discussing the recent study that shows how women may be discriminated against for the possibility of having children. They then answer the question, "Can my work monitor my cell phone usage at work if it's not a company phone?"

Full Podcast Transcript

NASIR: Welcome to Legally Sound Smart Business. This is Nasir Pasha.

MATT: This is Matt Staub.

NASIR: And this is the podcast, your only podcast and only source for business in the news and, also, It’s not the only source for business in the news, it’s the only source for business legal news where we add our legal twist and also answer some of your business legal questions that you, the listener, can send in to

MATT: And the only source of struggling intros in every single episode but that’s fine.

NASIR: Ah. Well, I’m not a radio disc jockey as they would say.

MATT: You were on the radio for a long time.

NASIR: Yeah, but not as a DJ – more of a radio personality.

MATT: Yeah, in the guest capacity.

NASIR: In a guest capacity.

MATT: You were introduced; you weren’t introducing anything else. I guess that’s true.

NASIR: That’s right, exactly.

MATT: Maybe I should take over the intro.

NASIR: I know that’s what you want to do.

MATT: I don’t know. I’d probably screw it up. I don’t want to risk it.

NASIR: We’ll switch it up one time. That’ll be fun. Actually, why don’t you just practice right now? Let’s hear it. Do it on the spot. Do it.

MATT: So, this is Legally Sound Smart Business.

NASIR: Terrible.

MATT: Horrible.

NASIR: Okay, sorry, go ahead.

MATT: It’s a business legal podcast where we talk about a story in the news and answer your legal questions. That’s pretty much what you say, right? I don’t know, it’s engrained in my mind.

NASIR: What email? What email do they send it to?

MATT: Oh, or @askbizlaw on Twitter or go to our website.

NASIR: All right, don’t get fancy on us.

MATT: So, I heard that 40 percent of managers avoid hiring younger women to get around maternity leave – by heard about, I mean, that’s a recent survey that came out. I mean, 500 managers is I guess kind of a small sample size. It’s still pretty sizeable.

NASIR: I think it’s big enough. Yeah, it’s big enough to give some kind of weight to it.

MATT: This is obviously an issue and this is something that could give rise to a lawsuit. These numbers are out there but the problem is going to be proof that a woman was discriminated against based on gender. I guess that’s what it comes down to for me. I don’t know. That’s unfortunate for these women but I don’t know how they get around this.

NASIR: Yeah. I mean, we’ve been kind of dancing around this issue for a while, even in our blogs and podcast regarding maternity leave and so forth and how I think, in general, there is definitely I’ve seen more this year than last year of this aspect of discussing this maternity leave as compared to other countries and the law surrounding it. I think even last year they were talking about some standards of putting in leave for fathers as well to be able to share leave in 2015. I’m not sure what happened to that and whether that was state or nationwide or not but it’s understandable from an employer perspective, especially when you’re maybe a smaller company where maternity leave may affect you, specifically in California where other is more for 50 or more employees. When you have an employee leave, that can be pretty dramatic, even though you may not be paying them but then also being able to hold that spot for them when they come back, and it may not fit in every kind of business but this is the reality of where we live in. I’m just telling everyone who’s listening, this is going to be the trend. I don’t think we’re going to see these kinds of benefits taken away. If anything, they’re going to be expanded more, and one way not to react is just not hiring people that may get pregnant.

MATT: I think allowing the father or the paternal leave, I guess allowing that will kind of help this issue out.

NASIR: That’s true, because then the whole discrimination of gender won’t be in there as well. I think that’s fair.

MATT: Like you say, I mean, somebody leaves on maternity leave – that’s three months, whatever it is – you know, you have a couple of options. You can try to find a temporary replacement or you can just have everyone kind of pick up the slack – like, the team effort – and everyone do a little bit more for three months. But, I mean, there’s really no easy way to go about it. I mean, best case scenario is somebody leaves, you have somebody who’s just going to temporarily fill in for three months, and they do a good job. I guess that’s the pipe dream but it probably doesn’t happen that often.

NASIR: Yeah, exactly. I was just looking up what other countries do and how long they are.

MATT: Don’t some countries have year-long leaves and things like that?

NASIR: Yeah. So, let’s see, United States is 12 weeks average; Iceland, 3 months; Germany, 14 weeks; Japan, 14 weeks; Malta, 14 weeks. That seems to be pretty standard. New Zealand, 14; Switzerland, 14; Belgium, 15 – you get an extra week there; and then, Finland and Slovania, 105 days – that’s almost 4 months?

MATT: Three and a half.

NASIR: And 5 months in Italy. Oh, in Macedonia, 9 months.

MATT: Ah, I was close.

NASIR: In Albania, 365 so that’s one year.

MATT: Ah, see, that’s what I was thinking of. I knew it.

NASIR: Albania, of course. Oh, no, there are other one years, too. I mean, Canada has one year, too – 52 weeks.

MATT: Yeah.

NASIR: They put 52 weeks instead of one year. I don’t know what the difference is. Maybe in a leap year, that extra day they don’t want to give up.

MATT: Pretty key.

NASIR: In Sweden, it’s 420 days. I’m just illustrating that this is the trend that it’s going to expand, if anything. I think it’s more important to give the option for the fathers than to just expand the time itself. But it’s understandable too. I mean, this can be very disruptive to a business but this is something that has to be dealt with accordingly. I mean, this is the law of the land and I don’t think it’s going to change any time soon. There’s also a percentage of wages paid. A lot of these leaves in other countries are actually paid wages. In the United States, it’s zero, but a lot of these other countries that I just named are pretty much 100 percent. Canada is 55 percent for 17 weeks.

MATT: You know, there’s definitely countries out there that cater to more of the nice balance of work and family. There is, for sure, companies out there that I would say almost even encourage people to have kids. But, on the flip side, you have businesses that are probably going to be the exact opposite.

NASIR: Yeah.

MATT: I guess, depending on what you’re looking for, find the right company. It’s pretty easy. Just find the right company you want to work for.

NASIR: Very good.

NASIR: All right. Well, let’s get to our question of the day. This is a good one.

MATT: Question of the day.
“Can I fire someone on maternity leave?” No.

NASIR: “Can I move to Albania to get longer maternity leave before I get pregnant?”

MATT: Yeah. “How long until I become an Albanian resident?”
“Can my work monitor my cell phone usage at work if it’s not a company phone?” – San Diego, California.

NASIR: We get a lot of these monitoring questions, right?

MATT: This was actually a question submitted in person to me.

NASIR: Oh, is that right?

MATT: Yeah.

NASIR: I don’t think I’ve had any experience with clients that have been really into spying on their employees that much and I know we talk about it a lot but I’d like to think that it’s not as common as people think it may be, as much as people talk about, but I guess I understand it, I suppose in certain industries. But I think the answer is simple, right? I mean, for personal cell phones?

MATT: Yeah, if it’s a personal cell phone, even if they’re at work, it’s not going to give the employer the right. I guess it would depend what they mean by “monitor the usage.”

NASIR: Yeah, that’s a good question.

MATT: They can’t see what’s on the phone but, if you’re talking on your phone or more accurately just texting or looking at something, I mean, they can watch you do that and tell you to not doing but can they see what you’re actually texting on a personal phone? They’re not going to be able to do that unless you’re taking photos of confidential things you’re not supposed to.

NASIR: Yeah. I mean, this kind of goes to everything from even private email, right? What exactly is private? And then, there’s the aspect of cell phones because, sometimes, cell phones have cameras and can be used as recording devices and there may be sensitive or confidential information within the workspace and so forth. I think the answer is generally no, they can’t do that, but I think there are certain circumstances for which companies can limit their exposure or restrict what they’re trying to prevent in having to monitor or having to want to monitor personal cell phone use. I think, in general, I mean, you can definitely restrict a worker from using their personal cell phone during their work – whether or not they use personal email during the time, especially if they’re using company property to do it, things like that – but I don’t think it’s a good idea in general to spy on your employees on a personal level.

MATT: Yeah, there’s obviously cases that have come down on these issues. You know, as long as it’s private things you’re doing, it’s going to remain private. If it’s open to the public, people can see – different story. The key is to have a good policy in place and follow it.

NASIR: Also, I think the main concern is security and restricting confidential information, et cetera. I think the best way to handle that, if you have a legitimate concern, just separate the personal stuff – prohibition from use of your cell phone on premises other than in an emergency, et cetera, should be 100 percent prohibited. You can restrict any kind of personal use of the computers, including personal email, et cetera. You can say, “Hey, look, these computers are monitored so don’t use your personal email and so forth. That is prohibited. You’re wasting time at work, et cetera.” I think that is a more appropriate way than just to spy on them which doesn’t seem like the best way to go about it.

MATT: Yeah, I concur.

NASIR: We concur. Well, that’s the end of our docket today as you used earlier this week.

MATT: My dissenting opinion.

NASIR: Yeah, your concurring opinion.

MATT: I concur in part and dissent in part.

NASIR: All right. Well, thanks for joining us this week, guys. Don’t forget to leave some positive reviews on our iTunes channel or whatever they call it. Please do that.

MATT: Yeah. As always, keep it sound, keep it smart.

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A podcast covering business in the news with a legal twist by Pasha Law PC
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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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