Recently in Construction Generally Category

New York City Bars Employers from Considering Criminal History before Extending a Job Offer

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Julia Judish and Ken Taber published their client alert titled New York City Bars Employers from Considering Criminal History before Extending a Job Offer. This Alert discusses Mayor de Blasio's recent approval of the Fair Chance Act, a new law that generally prohibits New York City employers from discriminating against job applicants with a criminal record and prohibits inquiries about job applicants' criminal records before a job offer is extended. This new law applies to all private-sector New York City employers with 4 or more employees and, for or purposes of calculating coverage, the Act includes individual independent contractors performing work for the employer if those individuals do not themselves have employees. The new law is effective on October 27, 2015.

Fall Protection: "I survived."

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The Washington State Department of Labor & Industries (L&I) recently posted on its L&I Blog a blog titled "I survived," a cautionary tale about how fall protection saved a construction work from a 30' plunge. In early May, Apollo, Inc. employee Tanner Kane was using a bar to pop forms off the top of a retaining wall. Suddenly, he was catapulted over a 30' retaining wall. According to his work partner, Carrie Johnson, "It was crazy; one minute he was there, and in a blink of an eye he was gone." Because Tanner was using a fall protection system and was tied off to the horizontal lifeline installed for the job, he survived the potential 30' fall with no significant injuries. Tanner's coworkers activated the rescue plan and Tanner was able to self-rescue with help from Johnson.

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Uber Hits a Speed Bump in California: Labor Commissioner Rules Driver is an Employee

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury Paula Weber and Erica Turcios published their client alert titled Uber Hits a Speed Bump in California: Labor Commissioner Rules Driver is an Employee. This Alert discusses a recent decision that may signal a more stringent application of the test for determining independent contractor status. The California Labor Commissioner ruled in Uber Techs., Inc. v. Berwick, Labor Comm'n, Case No. 11-46739 EK (June 3, 2015), Super. Ct. Case No. CGC-15-546378, that an Uber driver is an employee of Uber, not an independent contractor.

DOL Invites Comments on Requirement That Bidders Disclose Employment Law Violations

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By Pillsbury Winthrop Shaw Pittman

Yesterday, Pillsbury attorney Julia Judish published her client advisory titled DOL Invites Comments on Requirement That Bidders Disclose Employment Law Violations. The Alert discusses President Obama's Executive Order 13673, called the Fair Pay and Safe Workplaces Order; the Order uses the prospect of gaining or losing an edge in winning government contracts to provide a powerful incentive for employers to comply with a broad range of employment laws. On May 28, 2015, the Department of Labor (DOL) published a Proposed Guidance on implementation of the Order and invited the public to submit comments by July 27, 2015. Because aspects of the proposed guidance create compliance burdens for government contractors and could unfairly place some government contractors at a disadvantage in the procurement process, the contractor community would be prudent to submit comments that may lead to changes in the final guidance.

California Department of Insurance and Other Agencies Continue Efforts to Crack Down on "Thriving Underground Economy"

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In late May, the California Department of Insurance (CDI) issued a press release announcing that it was involved in a multi-agency team that conducted a statewide outreach and enforcement effort targeting what it describes as a "thriving underground economy." The enforcements teams included the Department of Industrial Relations, Contractors State License Board, CDI, Franchise Tax Board and Employment Development Department and several district attorney investigators.

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California Amended Heat Illness Regulations Effective May 1

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UPDATE: Cal/OSHA issued a high heat advisory today (June 16) advising employers to protect employees against the risks associated with heat illness. Temperatures are expected to be 15 to 25 degrees above normal in Southern California through Monday.

California's Heat Illness Prevention Regulation was amended effective May 1, 2015. This regulation applies to all "outdoor places of employment" and to five enumerated industries: (1) agriculture, (2) construction, (3) landscaping, (4) oil and gas extraction, and (5) transportation or delivery of agricultural products, construction materials or other heavy materials (e.g. furniture, lumber, freight, cargo, cabinets, industrial or commercial materials), except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading. On May 14, 2015, the Department of Industrial Relations (DIR) and Cal/OSHA published a Guidance for Employers and Employees on the New Requirements (May 14, 2015), which is designed to provide guidance to employers and employees on how to implement the new requirements. On the same day, the DIR published a Heat Illness Prevention Enforcement Q&A . The new regulation requires, among other things, pre-shift meetings to review the high heat procedures, encourage employees to drink plenty of water and remind employees of their right to take a cool-down rest when necessary, the implementation of effective emergency response procedures, and the establishment, implementation and maintenance of a Heat Illness Prevention Plan.

Additional Source: Department of Industrial Relations, Heat Illness Prevention (English and Spanish)

Go Build Tennessee Act Signed by Governor

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Tennessee House Bill 24 was signed into law by Tennessee Governor Bill Haslam on May 20, enacting the Go Build Tennessee Act. The Act amend Title 4 and title 62, Chapter 6 of the Tennessee Code, and creates the "Go Build Tennessee Program". The Program will be administered by a 501(c)(3) nonprofit corporation whose duties will include "securing funding to promote and foster the development of a comprehensive statewide program designed to attract and increase career opportunities for secondary and postsecondary students in the construction industry."

California Bill Contemplates Tax Credit for Seismic Retrofit Construction on a Qualified Building

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California Assembly Bill 428 (Nazarian) proposes to allow, for taxable years beginning on and after January 1, 2016, and before January 1, 2021, a tax credit in an amount equal to 30% of the qualified costs paid or incurred by a qualified taxpayer for seismic retrofit construction on a qualified building. The tax credit could be claimed at the rate of 1/5th of the credit amount for the taxable year in which the credit is allowed and 1/5th of the credit amount for each of the subsequent 4 taxable years (reduced by any grant provided by a public entity for the seismic retrofit construction); as applicable, an excess credit may be carried over to the reduce the net tax in the following taxable year. Prior to seismic retrofit construction, the taxpayer would be required to obtain certification from the appropriate jurisdiction with local building code enforcement authority that the building has been certified as an at-risk property. The taxpayer would also be required to obtain a certification that the seismic retrofit construction had been completed, and to provide both certifications to the Franchise Tax Board upon request. The bill would take effect immediately as a tax levy.

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Utah Amends Law to Add Procedures to Address Excessive Precontruction and Constructions Liens

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Recently, Utah Governor Gary Herbert signed into law House Bill 46, new law that amends the provisions relating to unauthorized and excessive claims of preconstruction and construction liens. For those parties who agree to arbitrate claims for a residential project or for $50,000 or less, H.B. 46 amends Section 38-1a-308 of the Utah Code to add Subdivisions (b)(4) through (15), which create procedures to initiate, conduct, and appeal an arbitration proceeding to resolve a claim for an excessive notice of preconstruction or construction lien.

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SEC Proposes Pay-for-Performance Disclosure Rules

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By Pillsbury Winthrop Shaw Pittman

Today, Pillsbury attorneys Mark Jones and Kathleen Bardunias, and summer associate Kevin Lin, published their client alert SEC Proposes Pay-for-Performance Disclosure Rules. The Advisory discusses the SEC's recently proposed rule under the Dodd-Frank Wall Street Reform and Consumer Protection Act that would require public companies to disclose the relationship between the compensation actually paid to certain key executives and the financial performance of the company, as measured by total shareholder return. If the proposed rule is finalized during 2015, affected companies may be required to make the "pay-for-performance" disclosures as early as the 2016 proxy season.

Virginia's New Law: Subcontractors and Material Suppliers May Not Waive Certain Rights in the Contract

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Recently, Virginia Governor Terry McAuliffe signed into law Senate Bill 891, new law effective July 1, 2015. S.B. 891 adds Section 11-4.1:1 to the Virginia Code and amends Subdivision (C) of Section 43-3 of the Virginia Code to prohibit the waiver of payment bond claims or contract claims, and the waiver of the right to file or enforce any mechanics' lien by subcontractors, lower-tier subcontractors and material suppliers in construction contracts.

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Are You Covered for a Superstorm?

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A version of our article titled Surviving the Storm originally appeared in a Bay Area Council publication in the March 2015. It discusses Superstorm Sandy's sobering preview of the types of insurance and risk management issues that business and residents face given the prospects of a catastrophic storm.

Snakes on a plane? Federal Court Limits DOI's Power to Control Interstate Transportation of Anacondas and Pythons

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On May 12, 2015, the U.S. District Court for the District of Columbia partially granted a request for a preliminary injunction against the enforcement on new Interior Department rules which are intended, under the Department's reading of the Lacey Act, 18 U.S.C. Section 42, to prohibit the interstate transportation of listed "injurious species"; the species in this matter are the Reticulated Python and the Green Anaconda. These species are raised and sold in commerce, but if they escape, they can become dangerous predators. The case is United States Association of Reptile Keepers, Inc., v. Jewell. Although the case make be about snakes, it serves as a reminder that a public agency is not permitted to exceed its authority when promulgating rules.

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Supreme Court Restates Importance of Right to Judicial Review of Administrative Actions

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On April 29, 2015, the United States Supreme Court issued another unanimous ruling holding that the right to judicial review is a fundamental tenet of administrative law. The case is Mach Mining, LLC, v. Equal Employment Opportunity Commission, and involves the right to challenge the conciliation proceedings of the EEOC in employment discrimination matters. Reversing the U.S. Court of Appeals for the Seventh Circuit, the Court ruled that "the strong presumption favoring judicial review of administrative action" applies to the informal conciliation procedures used by the Commission in attempting to resolve these disputes, and accordingly rejected the holding of the appeals court that the statutory directive in Title VII of the Civil Rights Act of 1964 to attempt conciliation is not subject to judicial review. The Supreme Court concluded its opinion by stating that, "Judicial review of administrative action is the norm in our legal system, and nothing in Title VII withdraws the courts' authority to determine whether the EEOC has fulfilled its duty to attempt conciliation of claims".

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NV Annual Contractor Training Day Scheduled - August 6

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The Nevada State Contractors Board anticipates that more than 100 of the state's leading contractors are expected to attend the Nevada State Contractors Board's third annual "Training Day" this summer in Reno and Las Vegas. The intensive day-long seminar, scheduled to occur on August 6 will bring together experts in various fields to help Nevada contractors to improve their business operations and processes. The training seminars will held concurrently in Reno at 5400 Mill Street and in Las Vegas in the Clark County Building Department located at 4701 West Russell Road. Past contractor Training Days have featured experts on marketing, business development, finance, capital budgeting, building codes, Americans with Disabilities Act compliance, contractor regulation and more.

Additional Source: Nevada State Contractors Board, Horizons (May 2015)