Yesterday, in Perry v. Brown, the U.S. Ninth Circuit Court of Appeals declared unconstitutional Proposition 8, which took away the rights of gays and lesbians to use the designation of “marriage” to describe their committed relationships and, thus, deprived them of the status and dignity of those relationships.

The 9th Circuit concluded that Proposition 8 violated the Equal Protection Clause of the United States Constitution because it singled out same-sex couples for unequal treatment by rescinding from them alone a right—even if it was not a Constitutional right—without a legitimate reason. The Court concluded that there was no legitimate reason largely because Proposition 8 merely took from gays and lesbians the designation of “marriage” and left intact all of the substantive rights and responsibilities of same-sex partners. Therefore, the Court found that it did not promote any of the reasons advanced by the advocates of Proposition 8 (i.e., to promote childrearing by biological parents, to encourage responsible procreation, to proceed with caution in social change, to protect religious liberties, or to control the education of schoolchildren).

Because it held that there was no legitimate governmental interest in prohibiting same-sex marriages, the 9th Circuit inferred that Proposition 8 was enacted only with the constitutionally illegitimate basis of animus toward or disapproval of gays and lesbians.

It is noteworthy that the opinion seemed to be targeted at Justice Anthony Kennedy who would likely be the swing vote if the case is appealed to the United States Supreme Court. The decision relied heavily on the Supreme Court’s 1996 opinion in Romer v. Evans in which Justice Kennedy, writing for the Court, found an amendment to the Colorado Constitution violated the Equal Protection Clause because it was born of animosity towards gays and lesbians and lacked a rational relationship to legitimate state interests.

Many commentators argue that Perry v. Brown will have no impact outside of California. I disagree. While it is true that the Court did not find that there is a fundamental right to same-sex marriage (because it did not need to address the issue), it did find that gays and lesbians cannot be stripped of existing rights to marriage equality. To the extent that another state attempts to rescind any rights of gays and lesbians, including the right to marry, without a legitimate reason, the 9th Circuit’s decision would seem to apply.

Yesterday, an Op-Ed piece in the New York Times addressed the subject of unpaid internships in an artcile entitled Unpaid Interns, Complicit Colleges.

Most for-profit companies believe that unpaid internships are legal as long as their interns receive academic credit. However, this convenient misconception is simply not true. In fact, under both federal and California law, interns are considered to be employees unless all of the following six factors apply:¹

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;


2. The internship experience is for the benefit of the intern;


3. The intern does not displace regular employees, but works under close supervision of existing staff;


4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;


5. The intern is not necessarily entitled to a job at the conclusion of the internship; and


6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

Because internships will rarely satisfy these factors, most interns are entitled to compensation, including minimum wage and overtime, and their employers are subject to civil and criminal penalties.

Since most colleges and universities are complicit in helping employers exploit their students and government agencies lack the resources to crack down on employers, students need to take matters into their own hands. Unpaid interns should consult with employment lawyers, like the Law Offices of David S. Levy, to explore their rights to unpaid wages and penalties.

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¹ These six factors—derived from the United States Supreme Court’s decision in Walling v. Portland Terminal Co. (1947) 30 U.S. 148—are more fully explained in the Department of Labor’s Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act (April 2010), and California’s Department of Labor Standards Enforcement’s Opinion Letter of April 7, 2010.

Yesterday, Charlie Sheen filed his high profile lawsuit against Chuck Lorre and Warner Brothers.

Among others, Charlie Sheen asserts claims for disability discrimination under California’s Fair Employment and Housing Act (“FEHA”). Interestingly, nowhere in his complaint does Mr. Sheen allege that he is disabled. Instead, he alleges that Defendants have accused him of having physical and mental disabilities. Likewise, Mr. Sheen alleges that Warner Brothers contends that health-care experts have described him as suffering from a “hypomaniac” psychological state and observed that he is in an alleged “manic” and/or “bi-polar” state.

Perhaps Charlie Sheen is simply unwilling to claim that he is disabled or his lawyers have not had a chance to have him diagnosed. Regardless, Mr. Sheen can still pursue disability discrimination claims without actually alleging that he is disabled.

Like the American’s with Disabilities Act, FEHA not only protects individuals with disabilities, it protects individuals who are “regarded as” being disabled. The rationale behind affording such protection to individuals “regarded as” disabled is that stereotyping individuals as disabled is deemed to be just as handicapping as the limitations flowing from actual impairments. Accordingly, in his lawsuit, Charlie Sheen has stated viable claims that he suffered unlawful harassment, retaliation and discrimination because of his perceived disabilities.

Finally, Mr. Sheen alleges that Defendants failed to provide reasonable accommodations for his perceived disabilities. While it is clear that employers have no obligation to accommodate employees that are merely “regarded as” disabled under the American’s with Disabilities Act, employers are obligated to provide reasonable accommodations to employees that are “regarded as” disabled under California’s FEHA. Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34.

While it is never advisable for employees to communicate with their attorneys on their employers’ email and computers—particularly when communicating about claims against their employers—a recent California Court of Appeal decision concluded that such communications may not be protected by the attorney-client privilege.

In Holmes v. Petrovich Development Co., LLC, 2011 Cal. App. LEXIS (January 13, 2011), a California Court of Appeal held that such communications between attorney and client were not privileged because (1) the electronic means belonged to the employer, (2) the employer had advised the employee that her electronic communications were not private, could be monitored, and could be used only for business purposes, and (3) employee was aware of and agreed to these conditions. Under the circumstances, the Holmes Court held that the communications were not confidential. In fact, the Court commented that it was “akin to consulting her attorney in one of [employer’s] conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by [employer] would be privileged.”

Although the result may have been different if the employee had communicated with her attorney from work through a personal web-based email account or if the employer’s policy had been less clear, employees should assume that all communications from company computers are not private or confidential. Likewise, attorneys should advise their clients not to open emails containing attorney-client communications on their company computers.

Last month, in Silguero v. Creteguard, a California Court of Appeal held that an employer could be liable for wrongful termination in violation of public policy for terminating an employee to honor a non-compete agreement between the employee and a former employer.

In Silguero, plaintiff’s former employer requested “the cooperation and participation” of plaintiff’s current employer in enforcing a non-compete agreement signed by plaintiff. Although it understood that non-compete agreements were unenforceable in California, the subsequent employer fired plaintiff “out of respect and understanding with colleagues in the same industry.”

The Silguero Court explained that the “understanding” between the employee’s former and subsequent employers was void and unenforceable under Business and Professions Code §16600 because it unfairly limited the mobility of the employee, and because the former employer should not be allowed to indirectly accomplish that which it could not accomplish directly.

In finding that plaintiff could state a cause of action against her subsequent employer for wrongful discharge in violation of public policy, the Silguero Court found that Business and Professions Code §16600 was a fundamental public policy favoring open competition and employee mobility. Further, the Silguero Court found the “understanding” between the former and subsequent employers to be tantamount to a no-hire agreement.

While it has long been settled under California law that a former employer can be liable to an employee for attempting to force a subsequent employer to abide by a non-compete agreement (e.g., for intentional interference with contract or prospective economic advantage), Silguero confirms that the subsequent employer may also be liable to the employee if it succumbs to the former employer’s demands.