Private law firms that take on unpaid interns and externs need to be careful. Many industries are seeing an uptick in lawsuits by former interns and externs claiming they should have been paid, should have been provided with a required meal and rest periods and otherwise treated as employees, not the volunteers they were touted to be.

The general rule in California is that any person that suffers or permits another to perform work for them is an employer and the California Labor Code will apply to that relationship. An internship or externship falls outside of that general definition only if the workers attain the special status of trainee or intern who performs some work as part of an educational or vocational program. Unless the internship is set up to fall within the exception to the general rule, an intern is nothing more than an employee with a different label attached to him or her, and all of the laws related to how to treat an employee applies equally to that intern. Thus, unless the internship is clearly within the legal exception to the rule, the intern has the right to be paid, the right to meal and rest periods, the right to accurate and timely paychecks and pay stubs, and all other rights of an employee. The intern cannot be asked to waive those rights; any attempt to procure a waiver would be void as a matter of law.

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Social media has become, in a few short years, part of the fabric of our society. Seven years ago, less than ten-percent of Americans were part of a social media site. Today, 69% of all adults with on-line access are part of a social media site, and over 90% of those between the ages of 18 and 29 participate in social media. As of February of 2012, 89% of social network site users had a Facebook account, which translates into 66% of all online adults.

The rise in the use of social media has also led to a change in how our society relates to one another. One of these changes has been referred to as “cyberdisinhibition,” an increased willingness to behave online in ways that would not be attempted in person, making users bolder and driving them to inappropriate online behavior. A recent study and poll has revealed that over 42% of the respondents said they feel less inhibited interacting online than face-to-face and over 30% said that online interaction let them do something they have been wanting to do. This decrease in social inhibitions can lead to social media posts that reveal more about a person than they would like the general public to know, even though they are willing to share that part of their personality with family and friends.

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I deeply respect a great number of those persons who have applied their experience and knowledge to become mediators. A trained and skilled mediator is worth every penny of his or her fee when they keep parties struggling down the path toward a meeting of the minds when all those parties want to do is turn their backs on the unreasonable positions of the other side. There is no doubt in my mind that mediation has led to a settlement of many cases that otherwise would not have settled, leaving the parties to face the uncertainties of trial.

That said, my experience has been that far too many attorneys use mediation as an expensive substitute for old-fashioned negotiations, and they bring their matters to mediation long before the parties are ready to settle. It is surprising to me how many attorneys see a request to mediate as the necessary first step in the settlement dance without any exchange of demands or counter-offers. Perhaps this is because many attorneys are not comfortable with the adversarial old-fashioned demand/counter-offer approach, especially at the early stages when parties tend to exchange initial insults to communicate distaste for the other’s starting position. Perhaps it is because the legal environment has changed so that attorneys are being taught that the first step must be the involvement of a neutral. Regardless, I think all attorneys should look critically at the decision to mediate before initial negotiations have occurred and before certain expectations have been created.

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An employee subjected to workplace harassment, retaliation or discrimination is rarely able to adjudicate his or her rights by hiring an attorney to prosecute a case on an hourly basis, especially if that wrongdoing has resulted in termination or loss of substantial income. Recognizing that the inability to enforce a right is tantamount to not having that right, the California legislature determined that plaintiffs successful in prosecuting such claims should be entitled to attorney fees. California Government Code 12965(b).

In furtherance of those intentions, our California Supreme Court has instructed that when considering an award of attorney fees and costs, it must attempt to fairly compensate attorneys for the work performed, and exercise its discretion with an eye to the public policy behind the statutory attorney fee entitlement that is to encourage quality attorneys to take on complex and hard-fought cases to protect the rights of victims. To achieve this end, the fee is determined through an approach called the “lodestar analysis.” This article will discuss the process and law related to collecting fair compensation in FEHA cases using this lodestar analysis.

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With some exceptions, it is the solo and small firm practitioner who is taking on corporate America in the fight for the rights of individuals and small business. The vast majority of personal injury, employee rights and insured rights attorneys in the State work in solo and small firm businesses. These small firms regularly take on large-firm attorneys representing well-heeled corporate giants like insurance companies, auto manufacturers, drug companies and the like. These David vs. Goliath battles compel the solo and small firm practitioner to find ways to compete on both a financial and practical level with the bigger money and substantial workforces of those larger concerns.

The need to compete becomes even more focused when the litigation involves the generation of considerable amounts of paper. Significant written discovery, large volumes of documents received and produced between the parties, along with documents procured from third parties, and long and varied law and motion paperwork, all lead to several file drawers — and often several file cabinets — of paper on each case. And fighting the well-financed corporate defendant tends to increase that paper as that defendant and its attorneys press the size advantage.

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