Gravel2Gavel Construction & Real Estate Law Blog

On May 15, the Mississippi Supreme Court, in Christmas v. Exxon Mobil Corporation, ruled that Exxon was entitled to summary judgment in a case where its neighbors complained that the property (formerly operated as a waste disposal site) was home to many large alligators, making their lives untenable and decreasing the value of their property. The record indicated that the alligators had been imported onto the site from Louisiana by the previous owner. After noting that there was no evidence that Exxon brought the alligators to its property or that it was restraining the alligators in any way, the Court held that the presence of wild alligators “not reduced to possession, but which exist in a state of nature” cannot constitute a private nuisance for which a land owner can be held liable and, therefore, Exxon was not responsible for these wild alligators. At least two other states have concluded that private persons cannot be held liable for the acts of wild animals on their property that are not reduced to possession.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Anthony Cavender, the author of this blog.

Quantum Workplace leveraged employee survey data from “nearly 5,000 organizations and 400,000 employees that participated in the Best Places to Work program” to identify cities where employees were most satisfied with employee recognition. Information was collected about employees’ perception of recognition frequency on items such as, a pay increase, access to new learning or training materials, granted time off, and praise from senior leadership.

It found that the top 10 cities are:

1. Huntsville, AL – 73% Satisfied Employees
2. Nashville, TN – 69% Satisfied Employees
3. Austin, TX – 68% Satisfied Employees
4. San Antonio, TX – 68% Satisfied Employees
5. Washington, D.C. – 68% Satisfied Employees
6. Atlanta, GA – 67% Satisfied Employees
7. Charlotte, NC – 67% Satisfied Employees
8. Orlando, FL – 67% Satisfied Employees
9. Raleigh, NC – 67% Satisfied Employees
10. Tampa, FL – 67% Satisfied Employees

Quantum Workplace’s 2014 Recognition Trends Report examines more details on employee recognition, including examining employees’ preference of 11 different types of recognition and the frequency at which each were received; it segments its findings across eight demographics, including gender, position level, age, and race.

Additional Source: Forbes, The Top 10 Cities for Employee Engagement; The Best Places to Work in the Federal Government 2013 Rankings

Today, Pillsbury attorneys Tom Hill, Daryl Shapiro, Tim Walsh and Rebecca Carr Rizzo published their advisory Recent Decision Reminds Companies to Use Best Practices to Protect Their Internal Investigations. The Advisory discusses the recent oral argument in In United States ex rel. Barko v. Halliburton, filed in 2005 in the D.C. Circuit, during which DC Circuit panel (Judges Griffith, Kavanaugh and Srinivasan) expressed some support for the various Kellogg Brown & Root entities’ and the Halliburton Company’s position that their Code of Business Conduct investigations of the alleged misconduct was protected under the attorney-client and attorney work product privileges.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Tom Hill, Daryl Shapiro, Tim Walsh or Rebecca Carr Rizzo, the authors of this blog.

In mid-May, Cal/OSHA issued its second high heat advisory this year, reminding all employers “to protect their outdoor workers from heat illness by taking precautionary measures.” Cal/OSHA confirmed that it will be inspecting “outdoor worksites in industries such as agriculture, construction, landscaping, and others throughout the heat season” for compliance with California’s heat illness prevention regulations.

CalOSHA reminds employers that these regulations require all employers to protect outdoor workers by taking these basic steps:

• Train all employees and supervisors about heat illness prevention
• Provide plenty of cool, fresh water and encourage employees to drink water frequently
• Provide a shaded area for workers to take a cool down recovery break
• Prepare an emergency heat illness prevention plan for the worksite, with training for supervisors and workers on what to do if a worker shows signs or symptoms of heat illness

Special “High Heat” procedures are also required when temperatures reach 95 degrees:

• Observe workers for signs and symptoms of heat illness
• Remind workers to drink water frequently
• Provide close supervision of workers in their first 14 days of employment (to ensure acclimatization)
• Have effective communication systems in place to be able to call for emergency
• assistance if necessary

“When temperatures spike, employers are required to make sure that workers have enough water, shade and rest even if they don’t report any symptoms associated with heat illness,” said acting Cal/OSHA Chief Juliann Sum. “Preparation and easy access to water, rest and shade are the most effective ways to ensure that outdoor workers stay healthy.”

Additional Resources: DIR, Heat Illness Prevention and Heat Illness Prevention etool; CalOSHA, Cal/OSHA Issues First High Heat Advisory of 2014 as Temperatures Rise Across the State (Apr. 30, 2014) and Water. Rest. Shade; U.S. Dept. of Commerce, Local weather forecast by “City, St” or zip code

On January 23 and February 3, House Bill 2297 and Senate Bill 2051 were introduced, proposing to amend Title 62, Chapter 6, Part 5 of the Tennessee Code to expand home improvement contractor licensing and other requirements to the entire state, to clarify the meaning of owner, contractor, and commissioner, and to remove certain exemptions in the home improvement contractor law. If signed into law, HB 2297/SB 2051 will take effect July 1, 2014.

Present law defines a “home improvement contract” as an agreement between a “contractor” and an owner for the performance of home improvement. HB 2297/SB 2051 clarify that such a contract is between a home improvement contractor and owner. A “home improvement contractor” is anyone, other than a bona fide employee of the owner, who undertakes or offers to undertake or agrees to perform any home improvement for the owner, whether or not the person is licensed or subject to the licensing requirements. “Owner” will be defined as “(A) Any homeowner, tenant or any other person who orders, contracts for or purchases the home improvement services of a home improvement contractor; or (B) The person entitled to the performance of the work of a contractor pursuant to a home improvement contract.” Present law specifies that no home improvement contractor’s license is required for a retail clerk, clerical employee, salesperson or “other employee of a licensed home improvement contractor”. HB 2297/SB 2051 specify that this exemption applies to employees who do not perform home improvement work, amending from the current law “an individual who performs labor or services for a home improvement contractor or subcontractor for wages or salary” is exempt for the licensure requirements.

HB 2297/SB 2051 will also require a home improvement contract to contain information regarding each home improvement contractor who will perform work pursuant to the contract, amending from the current law reference to certain home improvement contractors being exempt from licensure due to the county exclusions under the contractor provisions.

Additional Resources: HB 2297; SB 2051; TN Gen. Assem. Fiscal Review Committee Fiscal Note SB 2051 – HB 2297 (Mar. 7, 2014)

Assembly Bill 1885 would require an allegedly aggrieved person to provide notice of an alleged violation of laws governing special access for disabled persons before filing a civil action against the owner of the property, agent, or other responsible party where the alleged violation occurred (Responsible Party). It would required notice as specified to be provided to the Responsible Party, and the Responsible Party to respond within 30 days with a description of the improvements to be made or with a rebuttal response to the allegations. If the Responsible Party elected to fix the alleged violation, it would have 90 days to do so and, if the improvements were timely made, the Aggrieved Party would be barred from filing a civil action. Except, the new provisions would not apply to claims for recovery of special damages for an injury-in-fact, and a court or jury would be authorized to consider previous or pending actual damage awards received or prayed for by the alleged aggrieved party for the same or similar injury. On May 6, in committee, AB 1855 failed to pass but reconsideration was granted.

According to the Assembly Committee on Judiciary Synopsis, Assemblyman Frank Bigelow, the author of AB 1885, believes that the “bill is necessary to provide relief to businesses who are having lawsuits filed against them because they are not in compliance with certain ADA regulations,” and “that thousands of small businesses across the state are having lawsuits filed against them for not being in compliance with the smallest of building standards established under the Americans with Disabilities Act and should have a 90-day window to correct any violations to come into compliance with the often times complex and confusing regulations before a lawsuit can be filed against them.” In contrast, it reports that opponents believe “that this bill singles out people with disabilities for unprecedented obstacles to the enforcement of civil rights, deprives them of a remedy for actual violations, and will deter, not encourage, compliance with disability discrimination law,” and “that the promise of the bill may be misleadingly unattainable because the requirements it would impose are inconsistent with federal disability discrimination law and therefore would not preclude the law suits from which businesses seek protection.”

It remains to be seen whether this bill will gain traction.

Additional Resources: California Legislative Information, AB 1885 (Feb. 19, 2014); Assembly Committee on Judiciary Synopsis (Bill Analysis) (May 6, 2014)

ENR’s 2013 — Images of the Year “features photos that best capture the mood and flavor of construction during 2013.” The 38 featured photos, selected from hundreds of images submitted, will no doubt lighten your mood.

Additional Sources: ENR, Close Call: 2013 Photo Contest Runners-Up (Jan. 15, 2014); ENR, Construction Photography Contest Judging is Challenging and Rewarding (Jan. 14, 2013); ENR’s 2012 The Year in Construction Photo Contest Winners

UPDATE: Forbes, The Recession Generation: How Millennials Are Changing Money Management Forever

Apparently everyone is battling to win the millennials’ spending power. If you aren’t, maybe you should be.

Who are the “millennials?” In his Times Magazine article Millennials: The Next Greatest Generation?, Joel Stein explains that they are the “80 million Americans born roughly between 1980 and 2000.” (Another article reported that they are 90 million strong.) They are also commonly referred to as the Millennial Generation, Generation Y, Generation We, Global Generation, Generation Next and the Next Generation, and Echo Boomers. This translates into the oldest millennials being about 35 years old.

Now who are they really? In his article, Joel noted that “[t]he National Institutes of Health found that for people in their 20s, Narcissistic Personality Disorder is three times as high than the generation that’s 65 or older… Millennials received so many participation trophies growing up that 40 percent of them think they should be promoted every two years – regardless of performance.” However, he argues that “rather than being inherently self-centered or overconfident, millennials are just adapting quickly to a world undergoing rapid technological change. They’re optimistic, they’re confident and they’re pragmatic at a time when it can be difficult just to get by.”

Recognizing that there are distinct differences between millennials and prior generations, the Sacramento Business Journal recently published an article titled Top 5 millennial trends of 2014. Because “millennials have more purchasing power than ever before,” — one article reported that millennials are “expected to spend more than $200 billion annually starting in 2017 and $10 trillion in their lifetimes” — marketing to them needs to be strategic and innovative.

The Sacramento Business Journal identified the top five millennial trends as follows:

1. Social media paradigm shift — “… Instead of being afraid to share information, users are now focusing on what benefits come from sharing personal information online.”
2. Social ads are replacing banner ads — “…Traditional online banner ads are mostly ignored by social media users and are only clicked 0.2 percent of the time they are seen. Social ads are smaller and more suited for smartphones than traditional banner ads, and they are preferred by Generation Y.”
3. Pictures speak louder than words — “…millennials value brands that allow them to express themselves in unique ways. Photo sharing is a way millennials can connect with others through creative expression.”
4. Say goodbye to luxury branding — “…These millennials do not seek out products that show off their high status. Instead they are driven by experiences and opportunities to create memories that they can share with friends…Brands like Nike and Honda are now considered luxury brands, and are generally favored by the majority of millennials.”
5. More mobile — “…two out every five millennials say they would feel anxious without their smartphones. It is imperative that every platform be optimized for mobile use.”

How will you win the battle for their spending power?

Additional Sources: CNN Money, How young tech millionaires invest (Feb 27, 2014); Governance Studies at Brookings, How Millennials Could Upend Wall Street and Corporate America, Morley Winograd and Dr. Michael Hais (May 2014); Sacramento Business Journal, 4 ways Millennials will change business and politics (May 28, 2014); The Growing Home-buying Power of Millennials (Apr. 21, 2014); Trends 2014: Buying Power Shifts To Millennials And Female Home Owners (Aug. 27, 2013); Millennials: The Next Greatest Generation? (May 13, 2013); Sacramento Business Journal, Top 5 millennial trends of 2014 (Apr. 7, 2014) and Who will win the battle for the millennial grocery shopper? (Apr. 14, 2014); U.S. Chamber of Commerce Foundation, The Millennial Generation (Nov. 14, 2012)