Misclassifying Workers as Independent Contractors: A Costly Mistake

Construction companies must be aware of the difference between employees and independent contractors. State and federal agencies are increasingly targeting the misclassification of workers in the construction industry.  The repercussions for misclassifying employees as independent contractors, intentionally or not, include government audits, lawsuits by the government or by the misclassified worker, and payments of back wages, past taxes, civil penalties, and damages. Read More ›

USGBC Announces New LEED Credits for Structural Wood Building Materials. The Decision is a Boost to the Expanding Use of Wood in Public and Private Projects.

Increased LEED Credits for Use of Certified Wood.  

In early April, U.S. Green Building Council (USGBC) announced its expansion of the number of wood certification programs that it would recognize as qualifying for LEED credits.  USGBC’s new pilot program, which applies to LEED 2009 and LEED v4 systems, provides an Alternative Compliance Path credit for projects that use wood verified to be from legal sources by any of the following organizations:  Forest Stewardship Council (FSC), Sustainable Forestry Initiative (SFI), American Tree Farm System (ATFS), and the European-based Programme for the Endorsement of Forest Certification (PEFC).  This is in addition to the existing credit for wood products certified by FSC as having been obtained from responsibly managed sources.   Read More ›

California Employment Law Update - April 2016

The first quarter of 2016 brought sweeping new legislation that affects all California employers in significant ways.  Failure to understand and implement practices that follow the California employment laws can lead to significant liability that can be potentially crippling for many business owners.  This newsletter briefly summarizes some of the most significant recent changes to California employment law.  We encourage our readers to review the new legislation carefully and make changes to their business practices where necessary.  Read More ›

Giving Power to the Arbitrator: Permissible and Impermissible Delegations of Power

The construction industry has long been a leader in the use of arbitration. An arbitration clause was first included in the AIA standard form contract in 1915. The Federal Arbitration Act (FAA) was first enacted in 1925 and the American Arbitration Association was created in 1926. Although initially hostile, courts throughout the United States and the world have come to generally favor arbitration and the enforcement of arbitration agreements. But not all arbitration clauses are equally enforceable. As arbitration provisions have become more widely used, contracting parties have continued to test the limits of enforceability. This article discusses a generally permissible practice—incorporating by reference arbitration rules granting the arbitrator the power to determine the arbitrability of a dispute—and a potentially impermissible provision—prohibiting the parties from challenging the validity of the arbitration award. Read More ›

Effective April 1, California Employers Must Distribute Written Anti-Discrimination, Harassment, and Retaliation Policy

California's Fair Employment and Housing Council ("FEHC") has adopted new regulations under California’s primary anti-discrimination statute, the Fair Employment and Housing Act ("FEHA"), that take effect April 1, 2016.   The new regulations require all California employers with at least 5 employees to adopt and distribute written discrimination, harassment, and retaliation prevention policies that: Read More ›

Where Does the Duty of Care Flow? Limiting the Potentially Broad Liability of Construction Managers

Construction managers are often in an unenviable position. With expansive contracts, construction managers perform multiple tasks that may impact many different people. With the general charge of managing a construction project comes the potential of broad liability to those involved with the project.  Read More ›

Challenging Negative Performance Evaluations

In the course of evaluating the past performance of offerors competing for the award of a federal contract, agencies routinely examine performance evaluations contained in the government’s Past Performance Information Retrieval System (“PPIRS”).  Information is available through the PPIRS for three years after a company completes a service or supply contract, and for six years after the completion of a construction or architect-engineer contract.  Given the weight that agencies give past performance, negative information in PPIRS can have a significantly negative impact on a company’s ability to obtain future government contracts. Read More ›

Special Considerations for Subcontractors and Suppliers on P3 Projects

Public Private Partnerships, or P3s, are aptly named because they truly mix aspects of public and private construction. But does that mean they are like public projects and subject to state or federal bonding requirement and prompt payment obligations? Or are they like private projects with lien rights? Read More ›

Are Public-Private Partnerships Subject to Prevailing Wage Laws?

Public-Private Partnerships, often referred to as P3s or PPPs, are experiencing a growing popularity in construction.  One reason for this is quite straightforward: as public entities, whether they be cities, states or public agencies, continue to experience tightening budgets, creative means of financing necessary projects leads them to explore using some form of P3.  P3s allow public owners to obtain financing for projects that do not have adequate traditional funding sources.  While P3s may provide additional opportunities and work for many contractors, P3s raise as many questions as they answer.  Notably, given the “public” element of a P3, contractors at all tiers should ask whether the P3 requires payment of prevailing wages to workers on a project.  Two recent decisions have shed some light on when prevailing wages may be required by law on a P3 project.    Read More ›

P3s: Opportunities for Green

The public infrastructure of the United States is crumbling. While state and local governments face budgetary restrictions, they are also requiring more costly repairs through increasing mandates for green building. The United States Environmental Protection Agency describes green building as the practice of creating structures that are environmentally responsible and resource efficient throughout the building’s lifecycle, from design to maintenance operations. Not surprisingly, such lofty requirements often challenge a government entity’s ability to meet these obligations due to a lack of the necessary experience to efficiently develop the desired green infrastructure. Fortunately, Public Private Partnerships (P3s) offer new financing opportunities which facilitate meeting the often competing realities of limited public resources and experience with the demand for costly green building.  This goal is achieved through the P3 model by identifying entities best situated to assume risk – whether public or private.  Read More ›