Workplace Safety–the Unpreventable Employee Misconduct Defense
October 02, 2015 —
Craig Martin – Construction Contractor AdvisorI just attended an Associated Builders and Contractors meeting during which Lueder Construction discussed a fatality on one of its worksite. OSHA fully investigated the incident and did not issue a single citation. This is a testament to the safety plan and training Lueder had in place well before this incident. One defense to an OSHA citation is unpreventable employee misconduct. However, proving this defense requires substantial planning, well before an incident or investigation.
Unpreventable Employee Misconduct Defense
OSHA requires that an employer do everything reasonably within its power to ensure that its personnel do not violate safety standards. But if an employer lives up to that billing and an employee nonetheless fails to use proper equipment or otherwise ignores firmly established safety measures, it seems unfair to hold the employer liable. To address this dilemma, both the Occupational Safety & Health Review Commission and courts have recognized the availability of the unforeseeable employee misconduct defense.
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Craig Martin, Lamson, Dugan and Murray, LLPMr. Martin may be contacted at
cmartin@ldmlaw.com
Kaylin Jolivette Named LADC's Construction and Commercial Practice Chair
October 09, 2023 —
Kaylin Jolivette - Lewis BrisboisLafayette, La. (August 15, 2023) – Lafayette Associate Kaylin E. Jolivette was recently named Practice Chair of the Louisiana Association of Defense Counsel (LADC) Construction and Commercial practice.
LADC is comprised of over 1,400 attorneys in Louisiana who are engaged in the defense of civil litigation. The organization creates CLE programs tailored to individual practices throughout the year to provide members with the knowledge and skills to be among the top litigators in the region.
Ms. Jolivette is a member of the General Liability Practice. Her past experience includes practice in an array of civil litigation matters as both plaintiff and defense counsel from the pre-trial litigation phases, to trial and appeals, in various areas including products liability, privacy law, health care law, energy litigation, contractual disputes, personal injury, alternate dispute resolution, and construction litigation.
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Kaylin Jolivette, Lewis BrisboisMs. Jolivette may be contacted at
Kaylin.Jolivette@lewisbrisbois.com
Get Your Contracts Lean- Its Better than Dieting
January 13, 2020 —
Brian Perlberg, Esq. - ConsensusDocsI recently took the AGC Lean Construction Educations Program Units 1-7. After studying diligently, I’m happy to say that I passed the exam and earned my CM-Lean credential. Surprisingly, this makes me the first attorney to earn this distinction out of over 1,200 CM-Lean holders. So why is a construction attorney learning about lean? After all, this was my first exam in 20 years since I took the bar.
Well, according to McKinsey Global Institute, construction actually became less productive from 1995 through 2009. When it comes to efficiency, construction still lags significantly behind the manufacturing sector and the overall economy. Construction contracts – what we sign and the way in which we negotiate them, or lack thereof – is a principal reason why construction productivity is stagnant.
Contracting under an integrated lean project delivery method (ILPD) and incorporating Lean construction tools is the most powerful means to increase efficiency and add-value to owners. Owners are the client’s end-users of construction projects. ConsensusDocs has taken a leadership role in publishing the first standard ILPD contract which is an integrated form of agreement (IFOA). The ConsensusDocs 300 Integrated Project Delivery (IPD™) provides an off-the-shelf solution to contract utilizing lean tools. Not every owner can or is comfortable using an IPD approach. Consequently, ConsensusDocs produced the ConsensusDocs 305 Construction Lean Construction Addendum last year to provide an option for contracting for lean on Construction Management at-Risk and design-build projects. Some people call this approach IPD-lite or IPD’ish. Some disfavor such terms, because those terms have been used loosely on projects that aren’t very Lean.
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Brian Perlberg, Esq., Executive Director and Senior Counsel of ConsensusDocsConsensusDocs may be contacted at
support@consensusdocs.org
National Coalition to Provide Boost for Building Performance Standards
March 14, 2022 —
Pam McFarland - Engineering News-RecordEnergy efficiency advocates are hopeful that a new Biden administration coalition to promote and strengthen building performance standards could accelerate federal, state and local efforts to reduce carbon emissions from buildings.
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Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
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COVID-19 Information and Resources
May 04, 2020 —
Richard H. Glucksman, Esq. & Brian D. Kahn, Esq. – Chapman Glucksman Dean & Roeb BulletinINTRODUCTION
The current COVID-19 health crisis has greatly impacted nearly every aspect of our business and personal lives. The constant flow of rapidly evolving, and often contradictory information creates its own challenges for those who are responsible for ensuring compliance with relevant regulations and best practices while still moving forward with their business and family activities.
This bulletin differs from most Chapman, Glucksman, Dean & Roeb bulletins in that it does not highlight a recent case, statute or a single development, but rather acts as a resource and “links” to provide you with needed information and to simplify your search for critical information during this unusual and challenging time.
CIVIL LITIGATION: CLOSURES AND RESTRICTIONS
The State and Federal Court systems in California have drastically reduced their operations. The Governor issued Executive Order N-38-20, this suspends certain limitations on the Chief Justice’s authority, making it possible for orders to be issued adapting the Court’s operations to address the COVID-19 health crisis. As of this time, the most recent statewide order from the Chief Justice is the March 30, 2020 Order which allows Courts to utilize remote technology when possible. The March 30, 2020 Order also clarifies a prior Order suspending all trials for 60 days. As many of you are aware, civil trials in California must commence within five years of the initiation of the action, this is commonly referred to as the “five year rule”. While the five year time period was initially extended by the Chief Justice for 60 days, the Judicial Council subsequently adopted a series of Emergency Rules, including one which extends this to six months for all civil actions filed on or before April 6, 2020. The Judicial Council also adopted rules tolling the statutes of limitation for civil causes of action are tolled from April 6, 2020 to 90 days after the state of emergency has ended.
In addition to the statewide orders and rules, counties have enacted their own rules. Los Angeles Superior Court, for instance, has closed some locations while others remain open on a limited basis. On March 17, 2020 an Order was issued limiting the Court to “essential functions” through April 16, 2020. However, on April 15, 2020, a further Order extended the closure through May 12, 2020. While truly urgent Ex Partes may go forward, all regularly set hearings will be continued until after June 22, 2020. Trials will begin after June 22, 2020 with non-priority trials anticipated to start in later August or September. Notably, any deadlines imposed by current trial or hearing dates still stand until the specific dates are continued.
As with other aspects of the COVID-19 health crisis, the impact upon Civil Litigation continues to evolve, for the most up to date information we include the following links to the California Courts. The first page includes links to all the State and County Orders, the second page is for the Judicial Council Rules.
Links:
https://newsroom.courts.ca.gov/news/court-emergency-orders-6794321
https://newsroom.courts.ca.gov/news/judicial-branch-emergency-actions-criminal-civil-and-juvenile-justice
STATE AND LOCAL STAY AT HOME ORDERS
The State of California declared a state of emergency on March 4, 2020. On March 13, 2020 the President declared a national state of emergency. On March 19, 2020 Governor Newsom issued Executive Order N-33-20, also known as the “Stay at Home” order. This orders all Californian’s to stay at home, unless they are part of an essential businesses are exempt which generally includes construction and insurance. Generally, Californians are allowed to run essential errands, but they are not to congregate with those outside of their household.
In addition to the State, many cities and counties have enacted additional orders regarding whether certain types of businesses can remain open, use of parks, trails and other public amenities as well as what type of protective measures must be adhered to such as covering your face in public. As with Civil Litigation, the State and Local Government regulations continue to evolve. A link to the State’s COVID-19 page is below and we also encourage you to check your local City and County sites for additional information.
https://covid19.ca.gov/
BUSINESS AND FINANCIAL GUIDELINES
The impact of COVID-19 is unprecedented. While “essential businesses” may remain open for customers, steps must be taken to protect the health of both employees and customers. There are both State and, in many instances, Local Government regulations addressing these precautions. In addition to taking safety measures to protect the health of all involved, there are a multitude of financial concerns to be addressed. While most people have already heard about the moratorium on residential and commercial evictions, this does little to address how property owners will receive funds to pay their financial obligations, how tenants can pay their other obligations, how either can make payroll and most importantly, how employees who can no longer work due to their “non-essential” business being closed can put food on their tables.
The Coronavirus Aid, Relief, and Economic Security Act (the “CARES” act) may provide financial relief for many business by means of loans, some of which may be forgivable, and tax credits. The CARES act also modifies the Family Medical Leave Act (“FMLA”) to provide paid leave for those who cannot work due to COVID-19 as well as other benefits. The IRS has extended the deadline to file and pay taxes to July 15, 2020. Additionally, there are other Federal and State benefits which may be available for those whose jobs are impacted.
The financial impacts of COVID-19 are far reaching and continue to evolve. The Department of Insurance ordered insurance companies to return premiums for at least the months of March and April. This applies to certain lines of insurance where the risk of loss has fallen substantially. However, business interruption, environmental and pollution claims have increased exponentially. While most such policies require some physical damage in order to trigger an occurrence, there has been some discussion of legislation deeming the COVID-19 pandemic to fulfill the physical damage requirement.
If your business has been closed or impacted by COVID-19 we encourage you to review your insurance policies and key contracts to ascertain what your rights and obligations are as well as whether you may have any coverage for your losses. Just as importantly, speak with your business partners including vendors, customers and employees to ascertain their capabilities and willingness to work through this crisis.
US Department of Labor OSHA Guidelines:
https://www.osha.gov/SLTC/covid-19/
California Labor & Workforce Development Agency Resource Page:
https://www.labor.ca.gov/coronavirus2019/
California Employment Development Department:
https://www.edd.ca.gov/about_edd/coronavirus-2019.htm
CONSTRUCTION GUIDELINES
Many of our clients are involved in the construction industry. Construction has been deemed an essential activity and is exempt from many of the “stay at home” orders but certain protections and regulations still apply. In addition to the general workplace guidelines discussed above certain jurisdictions are providing guidance as to how to provide a safe construction site workplace. We have included a link the Los Angeles Department Building and Safety guidelines below.
However, in some instances work on a project may be delayed or may not be able to progress due to the project owner stopping work or the inability of subcontractors or suppliers to continue as originally intended. In this case one should review their contracts to see what justifies delay and inability to perform by either party and the impact thereof. Contracts should also be evaluated to ascertain whether the costs associated with compliance with the new COVID-19 regulations are a recoverable cost under the contract. As with the general business discussion above, contractors should review all available insurance, including builder’s risk to ascertain the existence of possible coverage.
LA DBS guidelines:
https://ladbs.org/docs/default-source/publications/misc-publications/construction-site-guidance.pdf
SUMMARY
The COVID-19 health crisis has had and, for the foreseeable future, will have a broad and severe impact on our society. The variety of evolving regulations on the Federal, State and Local Government levels make it challenging to comply, especially for businesses in operation. There are also a variety of resources available to help ensure compliance with these regulations as well as the financial and physical viability of our communities’ companies and employees. Please do not hesitate to contact us if you need any assistance in navigating these rules and resources.
Reprinted courtesy of
Richard H. Glucksman, Chapman Glucksman Dean & Roeb and
Brian D. Kahn, Chapman Glucksman Dean & Roeb
Mr. Glucksman may be contacted at rglucksman@cgdrlaw.com
Mr. Kahn may be contacted at bkahn@cgdrlaw.com
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No Coverage for Installation of Defective Steel Framing
June 26, 2014 —
Tred R. Eyerly – Insurance Law HawaiiThe California Court of Appeal affirmed the trial court's holding that the insurer had no duty to defend claims arising out of the insureds' installation of defective steel framing in an apartment building. Regional Steel Corp. v. Liberty Surplus Ins. Corp., No. B245961(Cal. Ct. App. May 16, 2014) [decision here].
Regional Steel was a subcontractor for providing reinforced steel to the columns, walls, and floors of an apartment building under construction. Regional used 90 degree and 135 degree seismic hooks as approved by the general contractor, JSM Construction, Inc. The City building inspector issued a correction notice, however, requiring the exclusive use of the 135 degree hooks. Levels one through three had defective tie hooks and required repair. JSM refused to pay Regional's invoices and withheld $545,000. JSM had to make repairs that required opening up numerous locations in the concrete walls, welding reinforcements to the steel placed by Regional, and otherwise strengthening the inadequate installation.
Regional sued JSM for the withheld payment. JSM cross-claimed, asserting breach of contract and breach of express and implied warranties.
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Tred R. Eyerly, Insurance Law HawaiiMr. Eyerly may be contacted at
te@hawaiilawyer.com
Union Handbilling: When, Where, and Why it is Legal
November 06, 2018 —
Wally Zimolong - Supplemental ConditionsA few days ago, IBEW Local 98 began began protesting a restaurant owned by professional football player Jahri Evans. The organizers are accusing Evans of violating local construction wage standards and are advertising their dispute with “handbills.”
What are handbills?
Walking down Fremont Street in Las Vegas is impossible without one or several characters putting a small business card with “questionable” adult entertainment advertisements in your hand. Some will slap papers to your chest, leaving you no choice but to grab the flyers.
On a different level, this action occurs on a regular basis by union member. But instead of shady characters pushing questionable entertainment, it is union representatives pushing a dispute with a local employer over working conditions. However, in either case the practice is known as i as handbilling.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
Building Group Has Successful 2012, Looks to 2013
February 14, 2013 —
CDJ STAFFThe North State Building Industry Association has looked back at 2012, and feels that they are “well-positioned to addressed future challenges in 2013 and beyond.” The organization, which represents home builders in Northern California, had several major accomplishments in 2012.
The NSBIA has managed to reduce fees that builders must pay. Due to their work with the Sacramento Regional County Sanitation District and the Sacramento Area Sewer District over the last several years, a new rate and fee methodology has been adopted, saving builders $3,000 per single family unit in SRCSD fees and $1,000 per acre in SASD fees. Fees were also reduced through agreements with the Folsom Cordova unified and Elk Grove school districts. The city of Rancho Cordova reduced its transportation fee by $3,500 per home.
In addition to their advocacy work, the NSBIA has continued its worker training programs. During 2012, 113 people participated in their Journeyman Upgrade classes, an increase of 20 from the prior year.
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