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The European Commission published the long-awaited Proposal for a Directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence (the “EU Directive”) on February 23, 2022. It has been suggested that text found in the EU Directive “risks making the law ineffective” by implying that companies can fulfil their obligations by simply adding clauses in their contracts with suppliers and verifying compliance with “suitable industry initiatives or independent third-party verification”. The criticism is that the “contractual assurances” and verification required by Items 2(b) and 4 of Article 7, and Items 3(c) and 5 of Article 8 allow companies to shift their responsibilities on to their suppliers and to knowingly get away with harm by conducting ineffective audits or participating in voluntary industry schemes that have failed in the past.
The argument that companies can find an easy safe harbor within the EU Directive is misguided. Such condemnation places undue emphasis on the first two elements to achieve the negation of civil liability under Article 22 and ignores the third factor. A company must prove not only that (i) it used appropriate contract clauses (under to-be-provided Commission guidance), and (ii) it verified compliance, but must also prove (iii) it was reasonable to expect the action taken, including the verification process, “would be adequate to prevent, mitigate, bring to an end or minimize the extent of the adverse impact.” The last element is unfairly discounted by those that fear delivery of a safe harbor to industry influences. In addition, due account is not given to Article 22’s additional text that insists company efforts (or absence of efforts) to remediate any discovered damage and the extent of pre-harm support and collaboration to address adverse impacts in its value chains (or absence of support and collaboration) is also to be considered in determining liability.
Articles 4 to 11, 25 and 26 of the EU Directive impose due diligence obligations on subject companies and address the duty of care required of their directors in setting up and overseeing due diligence. The EU Directive has numerous “Whereas” clauses expressing a desire to incorporate the UNGPs and OECD Guidelines which require shared responsibility between buyers and suppliers. It should not be read as suggesting companies avoid liability by simply demanding conventional representations and warranties from a first-tier supplier without shared responsibility for thorough retrospective and prospective investigations to identify, prevent and end adverse impact. Any company that believes “contract assurances” without a detailed and regularly reviewed corporate strategy to address human rights, climate change and environmental consequences using contracts as one of multiple tools is destined to be found liable for damages.
Perhaps Article 22 with respect to a company’s potential civil liability could be clearer with respect to this point if it included a reference to Articles 4,5 and 6 in lieu of the existing limited reference to the obligations laid down in Articles 7(Preventing potential adverse impacts) and Article 8 (Bringing actual adverse impacts to an end). But Article 12 (Model contract clauses) of the EU Directive includes a promise that the Commission will provide guidance for model contract clauses and Article 13 (Guidelines) states the Commission, in consultation with Member states, stakeholders, the European Union Agency for Fundamental Rights, the European Environment Agency, and appropriate international bodies may issue guidelines for specific sectors or specific adverse impacts. The to-be-developed model contract clauses should reflect the characteristics and obligations found in Version 2 of the Model Contract Clauses (the “MCCs”) drafted by the American Bar Association Business Law Section’s Working Group found here Center for Human Rights. The MCCs include provisions which require:
● a joint responsibility by buyer and seller to engage in human rights due diligence, in line with the UNGPs and the OECD Guidance;
● a commitment by buyer to engage in responsible purchasing practices that will support supplier’s obligations to avoid adverse human rights impacts; and
● in the event of an adverse impact, a joint commitment that: (a) the parties will prioritize victim-centered human rights remediation above conventional contract remedies (that compensate the non-breaching party, not victims); and (b) each party’s participation in remediation shall be proportionate to each party’s causation of or contribution to the adverse impact.
The EU Directive and the right contract clauses and due diligence guidance can change the way supply chains in global markets have worked for centuries. Finally, a real tool to address modern slavery and the environmental destruction of entire communities.
Making the decision to contact a family law attorney to address your legal issues is understandably stressful, and can add anxiety to the already painful concerns that have prompted your need for representation and legal advice. Whether your matter is related to divorce, child custody, child support, spousal support, alimony pendente lite, alimony, or equitable distribution matters, knowing in advance what to expect can help you be prepared and raise your comfort level. The information provided here will hopefully take some of the mystery and worry out of taking that first step: the consultation.
Once you have contacted the law firm and have confirmed that there are no existing conflicts, you will be scheduled for a consultation with a family law attorney. Consultations generally last for an hour but could be longer depending on the circumstances of your case. Prior to your consultation you should gather documents for the family law attorney to review. You should bring your important financial documents to the initial consultation, including tax returns, bank statements, retirement account statements, 401(k) statements, and mortgage statements. You should also bring any statements as to liabilities such as credit card statements, loan documentation and the like. If you have been served any legal documents, such as complaints for child support or spousal support, petitions for child custody, complaints in divorce, notices of any hearings or conferences, you should bring those for the attorney to review during the consultation. Likewise, if there are existing court orders in your matter, such as child custody orders, child support orders, spousal support or alimony pendente lite orders, marital settlement agreements, or any other order, you should bring those documents as well.
When you contact a family law attorney to schedule a consultation, you may already have a lot of questions. Write those questions down and bring them to the consultation so they can be addressed during your initial meeting. In the beginning of the consultation, the attorney will ask about the specific circumstances of your case. Some of these questions may seem very personal or irrelevant but please understand it is necessary. You will also be advised of the applicable laws in Pennsylvania or New Jersey. The family law attorney needs to have a complete understanding as to your facts and circumstances in order to provide quality information. This may be overwhelming, but you will have the opportunity to have your questions answered.
Pursuing a family law matter can be difficult and stressful, but understanding what the first step entails and coming to the consultation prepared will lower your anxiety and result in a more productive experience.
The holiday season is in full swing with Thanksgiving and Hanukkah already passed and Christmas, Kwanzaa and New Year’s rapidly approaching. What is supposed to be a happy and festive time of the year can feel anything but for parents who are separated or divorced and their children. Here are some suggestions for making the season more enjoyable and stress free - the greatest gift of all.
Children often struggle to enjoy the holidays if they know that the other parent is sad because they will not be together. If the holiday is not your day with the child(ren), you can help by making it clear to them that you are happy for them to celebrate with the other parent and that you will be ok. Even if you are having a hard time, do not put that burden on the children. You can certainly let your friends know that this is a tough time for you and reach out to them for support, but do not let your child(ren) know. Make some plans, even if it is just a movie marathon at home or finishing that book that you have been reading, so that your children know you have plans and are looking forward to the holiday.
Help the children pick out and wrap a gift for the other parent. Encourage them to make handmade cards. When the children have a gift for the other parent that you helped them to buy or make, they are excited to bring the gift to the other parent and can sense that you want them to enjoy the holiday with the other parent. It does not need to be an expensive gift, just something selected or made by your children to gift to their other parent. Yes, you should do this even if the other parent does not reciprocate, because ultimately it is good for the children. This promotes positive feelings for the child about your good will and allows the child(ren) to experience the joy of giving a gift to the other parent.
Make plans with the children to celebrate the holidays when they are with you, even if it is not on the actual holiday. The children will certainly be excited to have an extra celebration and it gives you an opportunity to create new traditions and memories with your children. While we all know that the holidays are on the calendar on specific days each year, there is no reason that you cannot celebrate on another day.
Stick to positive messaging to your children around everything holiday related. Avoid negatives such as putting the Christmas tree away on Christmas before the children return to your house. Just accentuate the positive, and you can’t go wrong! A good rule is to keep in mind throughout this special time of year that the child(ren) did not ask to be subject to a custody schedule or order - so it is your job as a parent to do what you can to make the holiday and transitions as easy as you can for them. You will be glad that you made a happy holiday memory for your child(ren), whatever day it may be that you had the opportunity to celebrate together.
As for New Year’s, be creative. If you have the children during the day on December 31st, celebrate at noon. If you do not, before they go to their other parent’s house for New Years, have a celebratory breakfast with a sparkling apple cider toast. It can be something fun and easy for you and the children and will start off their time with their other parent on a good note.
We hope these tips are helpful, and wish you all a happy holiday season and a happy and healthy New Year! As always, we are here to assist you with your custody and family law needs.
Elizabeth Fineman concentrates her practice on domestic relations matters and handles a variety of issues, including divorce, child support, alimony/spousal support, marital taxation, equitable distribution and child custody matters.
A recent decision by the Pennsylvania Supreme Court underscores the fact that although an employer may be in compliance with the federal Fair Labor Standards Act (“FLSA”), it may at the same time be in violation of the Pennsylvania Minimum Wage Act (“PMWA”).
The case, In Re: Amazon.Com, Inc. et al. v. Amazon.com, Inc., Amazon.com.DEDC, LLC, and Integrity Staffing Solutions, Inc. (43 EAP 2019), involved a class action brought by two employees who worked at an Amazon warehouse in Pennsylvania and sought to be compensated for time spent at the premises waiting to undergo and undergoing mandatory security screening.
As discussed below, a federal district court had dismissed the employees’ claims under the FLSA and the PMWA, but the federal Sixth Circuit Court of Appeals certified the case to the Pennsylvania Supreme Court to address the questions as to whether the PMWA applied to the employees’ claims and whether there is a de minimus exception to the PMWA.
Reprinted with permission from the June 21st edition of The Legal Intelligencer. (c) 2021 ALM Media Properties. Further duplication without permission is prohibited.
Since its enactment in 1986, employers have used the federal Computer Fraud and Abuse Act, 19 U.S.C. §1030 (“CFAA”) to vindicate violations of the employer’s workplace policies regarding use of computers, email accounts, and other electronic information by departing employees. The CFAA inevitably appeared as a claim in an employer’s complaint to address such conduct as downloading information from work computers and email accounts, or wiping devices and removing valuable information. The CFAA potentially provided relief where the information taken might not meet the definition of a “trade secret” in the federal Defend Trade Secrets Act (18 U.S.C. §1986), or Pennsylvania’s Uniform Trade Secrets Protection Act (12 P.S. § 5302). Further, and perhaps providing leverage for employers, the CFAA provided a criminal remedy for such violations. In Van Buren v. United States, 592 U.S. ___ (June 3, 2021), the United States Supreme Court may have eliminated that claim for wronged employers.
The CFAA prohibits intentionally accessing a computer with or without authorization or exceeding authorized access of a computer. The Act defines “exceeding authorized access” as accessing a computer with authorization and using that access to obtain information in the computer to which the individual is not otherwise entitled. The CFAA imposes criminal liability for violations of these prohibitions. It also imposes civil liability through a private cause of action if there is “damage,” meaning, an impairment to the integrity or availability of data, a program, a system or information.
Reprinted with permission from Lower Bucks Chamber of Commerce Outlook Magazine, July/August 2021 Edition
The pandemic changed the workplace dramatically, and perhaps permanently. COVID called upon employers to adapt to remote work with very little notice and preparation. Employers then adapted their offices and workspaces to allow employees to work safely in their facilities with masks and social distancing. And then, just as quickly, CDC modified its masking guidance. Employers are challenged to comply with changing guidelines and existing laws and a very competitive job market. Employers must consider new masking guidelines, vaccination mandates and remote work options, as well as the laws that apply to those considerations.
When the pandemic started, CDC guidelines presented a simple rule: In-person workplaces should require employees to wear masks, unless there was a health reason that prevented an employee from doing so. If an employee had a health reason not to mask, the employer could comply with the Americans with Disabilities Act, and the Pennsylvania Human Relations Act, by accommodating the employee who provided medical documentation of the health issue. The CDC recently changed its guidance to state that vaccinated people do not need to wear masks, and this is where it gets complicated.