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A significant number of employers in Pennsylvania, Delaware, and elsewhere depend upon lawful, nonimmigrant aliens in their workforce. These employees are authorized to enter the United States under nonimmigrant visas. The “H2B program” allows employers to petition the Department of Labor to employ agricultural workers, which includes workers in the landscaping sector, for periods of less than one year, when it can certify that locally available labor could not be found to fill the need.

On January 7, 2008, Judge Louis Pollak of the United States District Court for the Eastern District of Pennsylvania decided a class action case involving H2B workers in the landscaping industry that illustrates some of the features and potential trouble areas of the program. The Brickman Group, Inc., employed workers recruited in Mexico and Guatemala, by retaining recruiting agencies in those countries. In each country, the agency designated another representative as the exclusive entity allowed to present H2B visa applications to the U.S. Consulate. The representative did not, however, locate the workers for Brickman. Instead, Brickman only hired returning workers or those referred to it by returning workers, who then contacted the representative in order to get their visas.

Brickman made the employees responsible for their transportation costs from their country of origin to the Brickman worksites. The employees were also responsible for the costs of obtaining passports and visas, as well as for the fees charged by the workers’ representatives for assisting in obtaining passports and visas. When these fees were subtracted from the wages paid to the employees, the difference was below the minimum wage set by the Fair Labor Standards Act (FLSA). The questions presented to the court were whether Brickman was responsible for these costs.

The court first determined that the minimum wage provisions of the FLSA were not preempted by provisions of the Immigration and Nationality Act (which do not require employers to pay transportation costs for nonimmigrant employees). It then went on to hold that, under the facts involved in the case, the transportation costs, visa fees and representatives charges were primarily for the benefit of the employer and were therefore Brickman’s responsibility. Since H2B visas are specific to the particular employer for which the visa holder is to work, and employment with Brickman could only be obtained by incurring those expenses, they are all seen as primarily for its benefit. Passports, on the other hand, have a broader benefit to the employee, inasmuch as they allow travel to countries in addition to the United States and for other purposes, so they are not the H2B sponsoring employer’s problem.

There is an economic impact of this rule on the agricultural and landscaping industry. It is, of course, not strictly true that local labor cannot be found to perform landscaping services. If the wage were high enough, young Americans would be dropping out of medical school to take those jobs. But, that would require much higher wages than are practical for employers in that sector. Judge Pollak’s carefully written decision makes it clear that some of the potential savings to the employer in finding the employees at the lower wages are offset by the costs of recruiting from beyond our borders.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.

Employers are familiar with the requirement to document that each employee, both U.S. citizen and non-citizen, is authorized to work in the United States. This requirement is a mandate of the Immigration Reform and Control Act of 1986. Documentation is maintained on U.S. Department of Homeland Security Form I-9. The employer is required to verify the employee’s authorization by having the employee produce one or more of a specified list of accepted documents that are listed on the back of the form. Any document on List A is sufficient verification to establish both identity and employment eligibility, or a combination of one document from List B and another from List C can establish identity and employment eligibility, respectively.

The U.S. Citizenship and Immigration Service announced an amendment to the Form, and employers must now convert to the new Form I-9, effective January 1, 2008. The changes consist of narrowing the documents on List A that are acceptable as the sole evidence of both identity and employment eligibility. The updated list includes:

1. A U.S. Passport (which need not be current)
2. A Permanent Resident Alien Card or Alien Registration Receipt Card
3. An unexpired foreign passport with a temporary stamp, known as an I-551 stamp
4. An unexpired Employment Authorization Document (these are official USCIS forms) that contains a photograph
5. An unexpired foreign passport with an Arrival Departure Record, also unexpired, having the same name as the passport and containing an endorsement of the employee’s nonimmigrant and authorization to work status.

MacElree Harvey attorneys can provide you with further information about compliance with the Immigration Reform and Control Act and copies of the new Form I-9.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.

President Bush has signed the National Defense Authorization Act, which amends the Family and Medical Leave Act to add provisions relating to service members and their families. This Act was vetoed twice previously due to its attachment to bills with other provisions the President did not favor. Employers are required to accept the burden of supporting the armed services by allowing unpaid leave for the family members of service personnel when justified by a connection to their service. This represents one of the few occasions since September 11, 2001 in which the civilian world has been asked to share the burden of military operations.

The amendments, which apply only to employers already covered by the other provisions of the FMLA, create two new categories of leave entitlement. The first is for “exigencies” that occur when a family member of the employee is called to active duty. As such, it imposes no change in regard to employees whose family member is a member of the active components of the armed services but, since the Reserves and National Guard now constitute such a large portion of the ongoing deployments, will have a significant impact on the number of employees entitled to leave. “Exigencies” are specific, formally structured events, including pre-deployment and post-deployment meetings, teacher conferences, childcare and financial planning appointments and other similar meetings, and reunion and reintegration periods. The amount of leave remains the same 12 weeks, which can be taken intermittently, allowed for serious health conditions under the original FMLA. This change will take effect only after the Department of Labor issues final regulations for its implementation.

The second category of leave under the amendments allows for a full 26 weeks of unpaid leave. This is a one-time only allowance, to be taken in one twelve-month period, to care for a service member who became sick or injured while on active service in the military. Although casualties in Iraq and Afghanistan have been low compared to many previous wars, the number of wounded is far greater, in proportion to the number killed. The demand for leave under this provision may also become quite noticeable, and this portion of the amendment became effective on January 28, 2008, the day the President signed it.

Since what is referred to as the Global War on Terror started, there has been an increasing area of disconnection between the soldiers, sailors, airmen and Marines that fight the war, on the one hand, and the civilians who have been urged to continue with business as usual. As uniformed military members and their families often say, “the Army and Marine Corps went to war, and America went to the mall.” With the imposition of a small amount of obligation on the employers and co-workers of service families, there will now be some increase in the overall consciousness of what these people do for the rest of us.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.

As we boarded our train at 30th Street Station, I noticed a large billboard advertisement for mediation services in the Philadelphia area. After leaving the station, the train headed north on Broad Street, passing Temple University and reminding me of last year’s Elder Law Symposium in which I participated in a weeklong series of lectures and discussions on mediation. Deciding to catch up on the day’s news, I opened my copy of The Wall Street Journal. The first article I turned to was entitled “A Fading Court Scene: Juries in Civil Trials.” The article reported “jury trials in civil cases are vanishing from the judicial system even as the legal profession is booming. Fewer than 2 percent of civil cases went to trial in 2002, down from 11 percent 40 years earlier.” The article concluded that one of the reasons jury trials have been curtailed is the fact that more cases are resolved outside the courtroom through processes such as mediation.

We finally reached our destination, the quaint town of Doylestown, for a walk through town, dinner at the Black Walnut and a movie at the County Theatre. We decided to see Juno, a recently released movie about a 16 year-old girl’s journey through her unexpected pregnancy. The main character, named Juno, responds to a newspaper ad placed by a young married couple wishing to adopt a new born baby. Conflict arises and the married couple engages in collaborative divorce to resolve their differences and provide Juno’s baby with a home. Wow! Mediation and collaborative divorce on the big movie screen and in one of the top 10 movies of the year.

Clearly, there is a positive trend in the use of mediation and other dispute resolution processes in all types of cases. Most recently, I have mediated two cases which I think are perfect examples of how mediation is used to allow the parties to participate in reaching a final settlement of their dispute and accept the outcome without over spending on fees and emotions.

In the first case, an elderly couple wanted to remain in their family home and care for themselves. Their children decided the parents were not capable of living independently in their home and caring for one another. Some of the children hired an attorney to file a guardianship petition to have the parents declared incompetent, setting them up for assisted living or nursing home care. Others in the family believed they could best care for their parents and hired their own counsel to dispute the guardianship petition. By the time the matter reached the court, the parents’ home had been sold and they were living in a retirement community with some assisted living. The issue of the guardianship was still pending. I was asked to represent the legal interest of the parents. After meeting with my clients, it was clear that all parties wanted the same outcome for the parents: appropriate care and a safe living environment. The parties lost sight of this goal while posturing for the court hearing. Through the mediation process, we were able to resolve the care issue of the parents and select an appropriate person to act as a guardian for the parents. Although there was much tension throughout the process, the parties ultimately agreed on what was best for the parents and the parents provided input as well.

In the second mediation case, a young couple, married four years, decided to end their relationship and divorce. They called me to express their interest in the mediation process; they did not want to over-spend on fees and wanted to remain cordial to each other during and after the process. I met with both the husband and wife to discuss the mediation process and to determine if their case was ready to mediate. The determining factor was that each party truly wanted to be fair to the other party. However, for this to happen, they had to listen to each other’s perspective. After I advised them of the legal definition of equitable distribution and the factors for support and alimony, they each had an opportunity to explain why their economic request was fair. When listening to one another, the parties discovered they had not considered all of the reasons brought up by their spouse.

For example, the husband had relocated to another state and left the wife living in a large marital home, which was up for sale. The husband was the higher wage earner and could afford the marital home; the wife could not. The husband agreed to live in a smaller apartment and continue paying the mortgage until the house sold, as long as wife paid the other expenses for the house and maintained it until it sold. The equity in the house would be divided equally at the time of sale. Another example of compromise involved health insurance. The wife relied upon the husband for health insurance, which he acknowledged and agreed to continue until the wife had insurance of her own. In turn, the wife agreed to consider this as part of any alimony due to her after the divorce. After several involved mediation sessions, the husband and wife resolved their differences and the divorce process was not as painful as they thought it might be.

Meditation and dispute resolution are signs of our time and options to consider in any conflict matter.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.

A highly trained and talented farrier, who put horseshoes on Olympic hopefuls in Florida and New York, needed a pickup truck to ply his trade. He pulled a small farrier’s trailer containing a furnace, grinding machines, hand tools, along with shoes of all sizes, types and materials. He hauled not only nails for the shoes, but glue, for use on racehorses. It was not a big truck, but after a ten-year apprenticeship and five years of being in business, his reputation and his following were growing. He decided to buy a new truck – a big one like the ones owners of the horses drove. The new truck was a demonstration to his clients that he was successful, and it was a reward for building his business and for securing these important clients.

The 2003 Ford F350 King Ranch pickup truck is a big, luxurious, leather-seated, all-power model which offered a $5,000 optional 6.0 liter turbo diesel engine, coupled with a new transmission. The farrier ordered and bought one of the first to be available. Unfortunately, the new truck had a bad motor. Ford received 12,000 complaints concerning the motor, and eventually made 500 design changes to the motor. In 2004 Ford recalled the truck for two problems that could cause the motor to stall and not restart, which Ford explained could result in a crash.

In the first year that the farrier owned the truck, it was in the shop 9 times for a total of 30 days, for stalling and failing to restart. The engine problems were causing him to miss appointments at stables where 25-40 horse owners were waiting for their highly prized horses to get new shoes. The problems were making the farrier seem unreliable. He was so concerned about the impact the truck’s mechanical problems were having on his business that after the 9th serious failure, the farrier telephoned the Dealer and demanded a replacement. Instead of replacing the truck under the Lemon Law, the Dealer just traded him out of the old truck and into a new, more expensive truck of the same model. Unfortunately, after a year of good performance, the new truck was even worse. Instead of buying back the 2004 model under the Lemon Law, Ford would only “honor the warranty” by continuing to make repairs until the warranty expired. His business expired before the warranty. The second truck was in the shop for a total of 69 days after 7 stalls.

Lemon Law vs. Warranty Law

Most people know that the Delaware Lemon Law requires a manufacturer to repurchase or replace a consumer’s automobile if in 4 attempts in the first year, the vehicle fails to be successfully repaired for a condition that substantially impairs its use, value or safety. The Lemon Law also applies a deduction for the use a vehicle has had prior to the first report of the problem that makes it a Lemon. (This “allowance for use” applies when a consumer demands a repurchase of the lemon automobile, not when the consumer demands a replacement automobile.) The farrier had already been given a replacement pickup, but the replacement was just as bad, and, after 7 repair attempts, it cost him all of his best clients. He demanded that Ford and the Dealer buy back the pickup truck. However, the problem had not started until the truck had been driven 70,000 miles. So, if the farrier employed the Lemon Law, he would only recover 30% of the purchase price. Instead, he cancelled the sale under the Uniform Commercial Code, the general warranty law that governs all “goods” not just automobiles, like the Lemon Law. The Uniform Commercial Code has no provision for an “allowance for use.”

Ford complained that because the farrier used his truck for his business, he should not be allowed to have his attorney’s fees paid by Ford under the Federal Magnuson Moss Warranty Act, which only applies to consumer products. The farrier argued that since it is not unusual for consumers to use the King Ranch truck for towing boats, horse trailers, or recreational trailers, it was a consumer product. A jury agreed.

After hearing the farrier’s tale, a jury awarded the farrier the cancellation of the sale that he requested, and awarded him the full purchase price of the truck. Because of all that he endured and the near financial ruin the truck initiated, the jury awarded $40,000 for his “aggravation and inconvenience.” Because Ford was notified of his complaints about the truck, and was aware of 12,000 complaints from others with the same engine, the jury agreed that repossessing his truck months after the suit was filed when he was trying to cancel the sale, was too much. The jury awarded $12,000 in punitive damages. In total, the jury returned a verdict telling Ford to pay the farrier $103,000. Ford is also responsible for paying the farrier’s attorney’s fees and interest on the judgment, sums that will be determined by a judge, not a jury.

Sometimes the Lemon Law, good as it is, is just not good enough.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.

Sometimes when couples divorce, the custody battle never ends. Although the Court may have made a decision about custody and visitation, one or both parents may be unhappy and will continue to re-file for custody. Sometimes, the parents are constantly arguing and filing contempt for violations of their joint custody rights over relatively minor issues. These alleged violations may include: not getting phone calls regularly, getting a child’s hair cut, lateness, mistakes about pick-up locations, changing the schedule unilaterally if one parent has a special event, and problems notifying the other parent about children’s activities, schedules, and appointments.

There are also times when a parent may want to make a small, reasonable one-time change to a schedule for a special event and the other parent is completely inflexible. Many of these issues are small and are not going to be the basis for a change in custody or a finding of contempt. Yet the parties may file anyway as they see no other option. For Delaware families involved in these difficult cases, the Delaware Family Court Judges will frequently order the parents to attend counseling together with a therapist to work on their communication and to assist them in making joint custody decisions. For many divorced or separated couples the counseling works. For others, it is just another forum in which to argue and vent their disdain for the other parent without any results.

The parents who intensely engage in conflict obtain no resolution from counseling since the counselor has no decision-making authority over the parents. Therefore, if the parents cannot resolve even small day-to-day disputes, they often return to Court. The result is that the Court’s dockets have become clogged by cases involving these same parents returning to Court again and again seeking to have a judge resolve their daily arguments about the children.

A group of Delaware psychologists and attorneys have teamed up with the Delaware Family Court to launch a pilot Parenting Coordinator Program in New Castle County, Delaware. Parenting Coordinators are licensed Delaware attorneys or licensed Delaware mental health professionals. The Parenting Coordinator serves as a mediator who attempts to get the parents to resolve disputes themselves. However, if the parents are unable to resolve minor disputes, the Parenting Coordinator can make the decision for them. This decision-making authority is limited to small issues, such as one-time deviations from the schedule, minor changes in pick-up time or location, arranging child care for days not outlined in the Custody Order, professional days or snow days, attending sporting events and other minor issues the Court does not need to decide. Some of these decisions are time-sensitive and the parents could not get before the Court in time to resolve it. While the initial pilot program is limited and pro bono, parties can currently contract with a parenting coordinator privately. The ultimate goal is to reduce the fighting in front of the children and to reduce the stress on the children. For more information on the pilot project or to secure a Parenting Coordinator, please contact Felice Kerr in our Centreville, DE office at [email protected].

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.