AMM Blog

Welcome to the AMM Law Blog, a tool to help you keep up to date on current legal developments over the broad spectrum of our practice areas.  We welcome your comments and suggestions to create a dynamic forum that will be of interest to readers and participants.

On July 4, 2018, recent changes to the Pennsylvania custody law will go into effect. These laws take into account changes in the family structure and the expansion of classes of individuals who may qualify to file for physical or legal custody of minor children. 

The new class of individuals (third parties) who will have standing to file for custody must meet all of the following criteria as set forth in 23 Pa. C.S. 5324: 1.  The individual has assumed or is willing to assume responsibility for the child; 2.  The individual has a sustained, substantial and sincere interest in the welfare of the child; and,  3.  Neither parent has any form of care and control of the child.

In order to have standing, the individual must prove all three criteria by clear and convincing evidence, which is a high burden of proof.  Presumably, the burden is high to ensure that the child is protected and does not end up in the custody of someone unsuitable.  This opens up the possibility for neighbors, family friends, aunts and uncles or even sports coaches being awarded custody of children. The law also has a further limitation in that,  if there is a dependency proceeding, meaning that  there is a pending dependency petition alleging that the child(ren) is without proper parental care and should be supervised by the court, then the above criteria will not apply.

It should be noted that grandparents could have standing under two sections of the Custody  Code.  While grandparents and great-grandparents may have standing under 23 Pa. C.S. Section  5324, above,  they may also have standing to seek partial physical custody or supervised physical custody of their grandchildren or great-grandchildren under 23 Pa. C.S. 5329.  There have been changes to this section that will be effective July 4, 2018 as well.  Case law previously struck the sections that allowed for grandparents’ standing if the parents of the child(ren) were separated for at least six months or were getting divorced.  This is because it is unconstitutional  for intact families and families that are not intact to be treated differently.  The new revisions reflect that case law, and also strike those sections, but also added an additional section to  allow for grandparent standing: 1.  Where the relationship with the child began either with the consent of a parent of the child or under a court order and where the parents of the child:      A.  Have commenced a proceeding for custody; and,      B.  Do not agree as to whether the grandparents or great-grandparents should have custody  under this section.

Essentially this change allows a grandparent or great-grandparent who has an existing relationship with the grandchildren or great-grandchildren to be added as a party to a custody proceeding when the parents of the child cannot agree if the grandparent or great-grandparent should have any custody.

The final change to 23 Pa. C.S. 5329 changes the word parent to party in the section for consideration of criminal conviction.  The court must consider criminal convictions and make sure that there is no threat to the child(ren) before entering a custody order. This consideration relates to entering an order of custody to a party (not just a parent) who does have certain criminal convictions.

The timing of these changes to the custody law coincides with the rise of the opioid epidemic both nationwide and in the local area specifically.  Sadly, there has been a rise in the past few years of parents battling drug addiction and unable to care for their children, to the extent that  Pennsylvania legislators have felt compelled to address the impact of this crisis on minor children. These changes to the custody law increase the potential third parties who could seek to assume custody of the children in these situations.  The changes in the law reflect the reality that some of these third parties may already be caring for the child, but did not have standing to file for physical and/or legal custody previously.  As of July 4, 2018, they will be able to do so. 

Retailers, Importers, and brands need to immediately be sure there is no cotton from Turkmenistan in their supply chains.  The U.S. Customs and Border Protection (CBP) has finally announced it will turn away or seize and withhold any shipments of cotton originating in the Central Asian nation of Turkmenistan.  Affected importers will clearly experience a significant, and probably costly, disruption of production- related procurement.   The International Labor Rights Forum (ILRF) urged the U.S. to ban Turkmen cotton two years ago but was rejected until findings of state-enforced slave labor was documented after extensive investigation.

CBP was given the authority to ban tainted products like cotton from Turkmenistan when The Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) removed the “consumptive demand” exception to the United States Tariff Act of 1930, a commonly exploited loophole to the prohibition against importing products of forced labor. Prior to the new provision, CBP used the law only 39 times since 1930 to apprehend goods tainted at some point from creation to delivery by forced labor. Since the passage of TFTEA, CBP has issued four new Withhold Release Orders (each a WRO) on specific goods from China (soda ash, calcium chloride, and caustic soda from Tangshan Sanyou Group and its subsidiaries on March 29, 2016; potassium, potassium hydroxide, and potassium nitrate from Tangshan Sunfar Silicon Industries also on March 29, 2016; Stevia and its derivatives from Inner Mongolia Hengzheng Group Baoanzhao Agricultural and Trade LLC on May 20, 2016; and peeled garlic from Hangchange Fruits & Vegetable Products Co., Ltd. on September 16, 2016). 

A March 31, 2017 Executive Order establishing enhanced collection and enforcement of antidumping and countervailing duties and violations of trade and customs laws authorized the Secretary of Homeland Security, through the commissioner of CBP, to develop implementation plans and a strategy for interdiction and disposal of inadmissible goods and to develop prosecution practices to treat significant trade law violations as a high priority.

Although 2017 saw more antidumping and countervailing duty orders and intellectual property rights protection activity under TFTEA, there have been no published detentions prior to the ban of any shipments of Turkmen cotton, although CBP pledged to the U.S. Congress that more import bans under section 307 would be forthcoming.  Perhaps this is just the beginning of a long awaited CBP crack-down on forced labor imports to combat human rights abuses in global supply chains.

A Closer Look at Harassment Training

Written by Patricia Collins Wednesday, May 30 2018 16:38

I had the pleasure of revisitng the issue of training to avoid or address harassment and discrimination in the workplace at the Lower Bucks Chamber of Commerce ECONference 2018 on May 23, 2018.  The questions from participants reminded me that training is a valuable tool not only for risk prevention, but also to improve workplace culture.     

Training has become a “check the box” activity:  the employer gets to say that it provided training, in the event of a claim.  The employees are required to attend in order to keep their jobs, and so they attend and zone out.  Employer and employees are going through the motions.  The lawyers told them to train, so the employer is training.  

Here’s what I’ve learned:  the serious offenders, those who engage in serial harassment, inappropriate relationships or even assault, are going to engage in that behavior no matter what training you provide.  An employee who lacks the insight to know that certain behaviors are unacceptable (everywhere, really) will not have an epiphany during mandatory employee training.  One-on-one training often helps in these situations, but not always, and not fundamentally (that is, the employee will know what to do to stay employed, but will not really care that the behavior was inappropriate).

Employers should provide training – it is good risk management for certain employers.  But, perhaps it should be a more sincere activity on both sides:  employers should consider more interactive training, smaller groups and individualized training for departments.  Employers should engage in self-evaluation of workplace culture prior to planning the training.  

Further, if the goal is prevention of harassment, hostile work environment claims or other unacceptable workplace behaviors, generalized training is not always the answer.  Instead, employers should remember that culture comes from the top.  If officers, supervisors and managers maintain professionalism, it sets the tone.  It might be valuable to warn and provide one-on-one training to managers who do not demonstrate professional behavior, but in the end, appropriate workplace behavior should be a qualification for any leadership role.  

No lawyer will ever advise an employer not to provide training, but perhaps it is time to be more thoughtful about what training looks like for specific employees.  Avoiding litigation cannot be the only goal, or the training will never work.  I frequently work with employers to come up with meaningful training plans that comply with the law, and are appropriate for their business.

    

  

Goods Tainted by Forced Labor

Reprinted with permission from Business Law Today April 2018. 

The global fight against child labor and forced labor has been led for decades by the International Labor Organization (ILO). The ILO’s most recent estimate is that 25 million people around the world, including millions of children, are currently subjected to forced labor.  Under U.S. law, section 307 of the Tariff Act of 1930  prohibits the importation of merchandise mined, produced, or manufactured, wholly or in part, in any foreign country by convict, forced, or indentured labor. This law gave the U.S. Customs Service (now the U.S. Customs and Border Protection (CBP)) authority to seize commodities imported into the United States where forced labor was suspected to have been used anywhere in the supply chain.

The Tariff Act defines “forced labor” as “all work or service which is exacted from any person under the menace of any penalty for its nonperformance and for which the worker does not offer himself voluntarily.” Products of forced labor include goods that were produced by convicts and indentured laborers. The ILO defines forced or compulsory labor as service that involves coercion—either direct threats of violence or more subtle forms of compulsion under the menace of any penalty.  Goods made by child labor, defined as work that deprives children of their childhood, their potential, and their dignity and that is harmful to their physical and mental development,  are included in the forced-labor prohibition especially when combined with any form of indenture. Such tainted merchandise is subject to exclusion and/or seizure by the CBP, may lead to corporate criminal liability, and could even support prosecution of culpable employees individually.

The Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) removed the “consumptive demand” exception to the United States Tariff Act of 1930,  which was a commonly exploited loophole to the prohibition against importing products of forced labor. Prior to the new provision, CBP used the law only 39 times since 1930 to apprehend goods tainted at some point from creation to delivery by forced labor. Since the passage of TFTEA, CBP has issued four new Withhold Release Orders (each a WRO) on specific goods from China.  Although 2017 saw more antidumping and countervailing duty orders and intellectual property rights protection activity under TFTEA,  there have been no published detentions to date, although CBP has pledged to the U.S. Congress that more import bans under section 307 are forthcoming.

Reprinted with permission from the April 18th, 2018 issue of The Legal Intelligencer. (c) 2018 ALM Media Properties. Further duplication without permission is prohibited.


The Supreme Court’s decision in Encino Motorcars, LLC v. Navarro interprets a very specific exemption to the overtime rules imposed by the Fair Labor Standards Act, 29 U.S.C. 201, et seq. (“FLSA”), but the Court’s language and reasoning have game-changing ramifications.  The Court’s rejection of the principle that courts should narrowly construe exemptions to the FLSA turns decades of FLSA caselaw on its head.

The facts of Encino Motorcars are deceptively narrow.  Employees classified as service advisors for a car dealership challenged the car dealership’s classification of the service advisors as exempt from the FLSA.  The FLSA requires that employers must pay overtime to employees who work more than 40 hours in a week.  29 U.S.C. § 207(a).  The dealership claimed the exemption under a statutory exemption that applies to car dealerships.  29 U.S.C. § 213.  Specifically, the section in question exempts from overtime pay requirements:

Any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers.

Prior to the tax act, taxpayers who required additional cash for a variety of reasons, including buying our their spouse’s interest in the residence,  would regularly refinance the mortgages on their residence for a larger amount.  The benefit was that the mortgage interest on the refinanced mortgage could be deducted up to a $1,000,000 cap.  

The passage of the Tax Cuts and Jobs Act has effected a huge change limiting the mortgage deduction in this scenario, which may have a significant impact on parties going through a divorce.  The new law limits the amount of the mortgage to funds needed to acquire a residence, construct a residence or substantially improve a residence.  So, if you are refinancing for one of these allowable expenses, and stay below the $1,000,000 cap, the interest would still be deductible.   However, in a divorce that is often not the case.

In a divorce, the party retaining the residence will have to refinance the loans related to the residence to remove the other party’s name.  Often, this will be both a mortgage and a home equity line of credit.  Moreover, the party retaining the residence often has to refinance for a larger amount to make a cash payment to the other party to “buy out their interest” in the house.  With the new law, the parties refinancing the marital residence to take cash out to pay off the other spouse will be limited to the principal balance prior to the cash out refinance in terms of the interest that can be deducted.  For example, if the principal mortgage balance is $300,000 and the party retaining the residence is refinancing for $500,000 to pay off the other spouse, they will be limited for purposes of the deduction to the interest on the $300,000.  Interest on the additional $200,000 cannot be deducted.  In addition, there will be no deduction when the mortgage is refinanced to now include the home equity line of credit.  Parties are going to have to give more consideration to the tax consequences and resulting true cost of retaining the residence.

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