Articles Posted in Construction Generally

On July 2, 2015, in the case of Gate Guard Services, L.P., v. Perez, Secretary of Labor, the U.S. Court of Appeals for the Fifth Circuit held that the Department of Labor’s (DOL) prosecution of a Fair Labor Standards Act (FLSA) case was so egregious, in both the investigation, processing and, finally, in the defense of its actions in court, that the DOL was ordered to pay Gate Guard’s attorney’s fees–which may be as much as $1 million.

The DOL cited Gate Guard, a small company which contracts with oil companies to provide them with gate attendants at remote drilling sites, with mischaracterizing their employees’ employment status as independent contractors. The initial demand from the DOL was $6 million in back wages and unpaid overtime, and the matter was eventually litigated when Gate Guard sought a declaratory ruling, and attorney’s fees, that it was in compliance with the FLSA.

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Confined spaces refers to such spaces as manholes, crawl spaces, and tanks, and other spaces that are not designed for continuous occupancy and are often difficult to exit in the event of an emergency. These spaces can present life-threatening hazards including exposure to toxic substances, electrocution, explosions and asphyxiation. These hazards can be safeguarded against if addressed prior to entering the confined space to perform work. OSHA has added a new subpart to its regulations to provide protection for construction workers working in confined spaces, replacing its one training requirement for confined space work with a comprehensive standard that includes a permit program that was designed to protect workers from exposure to many hazards associated with work in confined spaces. OSHA’s Final Rule, 80 Fed. Reg. 25366 (May 4, 2015) (codified at 29 C.F.R. Part 1926), incorporates several provisions to address construction-specific hazards, accounts for advancements in technology, and improves enforceability of the requirements. The Final Rule is effective on August 3.

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.

Today, Cal/OSHA issued a high heat advisory urging all employers and, in particular, employers in the Sacramento Valley and adjacent foothills to protect their outdoor workers from heat illness. It advised that temperatures are expected to rise to highs of 115 degrees through Friday morning. Information is available online (Heat Illness Prevention and Water. Rest. Shade. Campaign) on the heat illness prevention requirements and training materials. A Heat Illness Prevention e-tool is also available on Cal/OSHA’s website.

Cal/OSHA issued its first high heat advisory for 2015 on June 16, 2015 for Southern California.

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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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.

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.

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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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)

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.”