Cambridge Massachusetts Building Expert Directory

The Double-Breasted Dilemma

July 18, 2022 — Lauren E. Rankins & Saloni Shah - ConsensusDocs
What Is A Double-Breasted Operation? A double-breasted operation is when a firm has two entities, and one entity performs work under collective bargaining agreements and the other does not. While this type of operation is not outright prohibited, it is often subject to a variety of challenges and scrutiny. To legally run a double-breasted operation, the two companies must remain separate and distinct. If the companies are not sufficiently separate and distinct from one another, the National Labor Relations Board (“NLRB”) or a court may find that the two companies are operating as a single entity or that the non-union company, or also known as the open shop, is merely an alter ego of the union company and, therefore, bound by the terms of the collective bargaining agreement. In order to determine whether the companies are sufficiently separate and distinct, the two entities must pass either the single employer test or the alter ego test depending on the nature of the double-breasted operation. Typically, the single employer test is used when the two entities run parallel operations, and the alter ego test is used when the open shop replaces the union company. Under the single employer test, the NLRB or courts will generally consider four factors: (1) the interrelation of operations; (2) common management; (3) common control of labor relations; and (4) common ownership. The alter ego test does not require a finding that the companies are a single bargaining unit, but analyzes to what extent the two entities have substantially identical management, business operation and purpose, business equipment, customers, and ownership. While common ownership is a factor considered under both the single employer and alter ego tests, common ownership alone is not dispositive of whether the companies are sufficiently separate and distinct. In other words, the NLRB and courts do not simply look for common ownership to determine whether the double-breasted operation is lawful. It is merely one of many factors to consider. Read the court decision
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Reprinted courtesy of Lauren E. Rankins, Watt, Tieder, Hoffar & Fitzgerald, LLP (ConsensusDocs)
Ms. Rankins may be contacted at lrankins@watttieder.com

How Does Your Construction Contract Treat Float

November 08, 2017 — David Adelstein - Florida Construction Legal Updates
Although there are different types of construction schedule float and more technical definitions, the definition that makes sense to me is that float is the amount of time a particular activity can be delayed without that activity delaying the project’s completion date (substantial completion date). In looking at a construction schedule, this determination is made from looking at the difference between the early start date for an activity and the late start date for that activity or the difference between the early finish date for that activity and the late finish date for that activity in your CPM schedule (which should be the same amount of time). This is often referred to as “total float” and is the float that I usually focus on since it may pertain to a delay to the substantial completion date of the project and can trigger either the assessment of liquidated damages and/or the contractor’s extended general conditions, whatever the case may be. Read the court decision
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Reprinted courtesy of David Adelstein, Florida Construction Legal Updates
Mr. Adelstein may be contacted at Dadelstein@gmail.com

Power & Energy - Emerging Insurance Coverage Cases of Interest

November 30, 2020 — David G. Jordan & Tiffany Casanova - Saxe Doernberger & Vita, P.C.
The Power & Energy sector faces a multitude of risks that impact output and profitability, requiring sound risk management and robust insurance programs. As of recent, like most industries, there have been significant challenges facing the industry in light of COVID-19. These issues, including decreased product demand as well as supply- side issues, have been well documented. However, other issues continue to impact Power & Energy providers, with significant insurance coverage implications that are worthy of note. Below is a summary of three open cases of interest, where declaratory relief has been sought by energy providers’ insurance carriers, seeking an avoidance of coverage. 1. Fracking Dispute and “Intentional Acts” In the Texas case of The James River Insurance Co. v. Clearpoint Chemicals LLC et al., No. 4:20-cv-0076 (N.D.Tex), James River Insurance Company (“James River”) is asking a federal district court to declare that it does not owe defense or indemnity to its insured for acts it defines as both intentional and/or malicious acts. Reprinted courtesy of David G. Jordan, Saxe Doernberger & Vita, P.C. and Tiffany Casanova, Saxe Doernberger & Vita, P.C. Mr. Jordan may be contacted at DJordan@sdvlaw.com Ms. Casanova may be contacted at TCasanova@sdvlaw.com Read the court decision
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Florida High-Rise for Sale, Construction Defects Possibly Included

October 30, 2013 — CDJ STAFF
The owners of One Bal Harbour in Bal Harbour, Florida have filed for bankruptcy and are seeking to sell off the luxury condominium and hotel building. There have been problems with the building, including flooding and allegations of structural defects. The original developer went bankrupt and sold before the construction defect lawsuits begain. The building’s opening price of $13 million won’t wipe out Elcom’s $20 million in debt. Read the court decision
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The End of Eroding Limits Policies in Nevada is Just the Beginning

August 28, 2023 — Payne & Fears LLP
On June 3, 2023, Nevada Gov. Joe Lombardo signed into law AB 398 (the Act) which modifies the Nevada insurance code by restricting the types of liability policies that can be offered in the state. The End of Eroding Limits Policies in Nevada First, the Act prohibits liability insurers from issuing “eroding limits” or “burning limits” policies. These are insurance policies under which defense costs decrease policy limits. Most professional liability policies are eroding limits policies. As of Oct. 1, 2023, insurers in Nevada may no longer issue or renew any policy where policy limits are eroded by defense costs. This change may result in higher premiums on these types of policies to compensate for the higher payouts they will now have to provide in Nevada. Read the court decision
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Reprinted courtesy of Payne & Fears LLP

Washington State May Allow Common Negligence Claims against Construction Professionals

November 20, 2013 — CDJ STAFF
Lane Powell, a law firm with offices in Washington, Oregon, Alaska, and London has issued a construction law update on a recent decision of the Washington Supreme Court. The case involved a development firm that sued its engineering firm. The developer had gained preliminary approval to develop two short plats, and after the approvals expired, sought the assistance of the engineering firm in regaining approval. Eventually, the developer lost the plats to foreclosure and sued the engineering firm. The Washington Supreme Court rejected most of the developer’s claims in the case, but sent the negligence claims back to the trial court. The Lane Powell construction law update notes that “the record didn’t adequately establish the scope of the professional obligations incorporated into the contract, the court refused to determine if any of the engineer’s duties to the plaintiffs arose independently of the contract.” Read the court decision
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The Utility of Arbitration Agreements in the Construction Industry

December 30, 2019 — Brian L. Gardner & Jason R. Finkelstein - Construction Executive
In today’s ever-evolving world of employment law, it is far from an easy task for construction industry employers to operate their business while successfully navigating all of the potential legal potholes that continue to abound and multiply seemingly with every passing day. This is particularly true in the face of the onslaught of claims lodged by current and former employees in recent years for alleged unpaid wages. While there may not be a “sure bet” way of avoiding such claims, one tool that employers should strongly consider in their arsenal are arbitration and class action waiver agreements. To that end, last year, the United States Supreme Court rendered its ground-breaking decision in Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018). In Epic Systems, the Supreme Court held that arbitration agreements containing class and collective action waivers of wage and hour disputes are enforceable. At the time of the decision, a split of authority existed among courts across the country as to whether such agreements were viable. On the one hand, several courts contended that class waivers unfairly violated employees’ rights to collectively bargain under the National Labor Relations Act. On the other hand, many other courts were finding that such agreements were fully enforceable and supported by the policies promoted under the Federal Arbitration Act. The Epic Systems Court sided with this latter viewpoint, concluding that the FAA’s clear policy promoting arbitration as a dispute resolution mechanism and private parties’ rights to freely negotiate contracts outweighed any potential arguments against such agreements under the NLRA. With wage and hour lawsuits being filed against construction industry employers practically daily, the Epic Systems decision is critically important. Construction employers can now freely enter into arbitration and class waiver agreements with their laborers and thereby potentially limit the cost, expense and exposure of fighting such actions in a public forum on a collective or class-wide basis. To be clear, such agreements will not eliminate employees from bringing such wage and hour claims entirely, nor should the use of those agreements signal to employers that they need not make every good-faith effort to comply with their obligations under the Federal Labor Standards Act and/or any applicable state wage and hour laws. But the reality is that arbitration and class waiver agreements can work to avoid tens or hundreds or even thousands of employees from banding together in some of the massive wage and hour lawsuits being filed across the country. Instead, employers can require that those legal battles be conducted by a single plaintiff in a more controlled environment before an arbitrator (or panel of arbitrators). Reprinted courtesy of Brian L. Gardner & Jason R. Finkelstein, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Mr. Gardner may be contacted at bgardner@coleschotz.com Mr. Finkelstein may be contacted at jfinkelstein@coleschotz.com Read the court decision
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Construction Needs Collaborative Planning

January 20, 2020 — Aarni Heiskanen - AEC Business
What makes construction different from manufacturing is its dynamic nature. Unlike a systemized production plant, a construction site is a mesh of interconnected processes that are far from optimized. The traditional top-down planning practice does not solve problems on the construction site, as recent research reveals. Making planning collaborative is a necessary step in making construction less wasteful. Everybody in the industry has felt frustration with inefficiencies in construction, but seeing the data is still disconcerting. I’ve had the pleasure of attending several workshops organized by the Finnish Aalto University’s research teams. These eye-opening events both revealed how much waste we have in construction today and suggested solutions to this problem. Four Aalto University graduate students shared insights from their research at a workshop of the Waste Workgroup of the Building 2030 consortium. They focused on projects where takt production, a lean construction method, had been used. Takt production breaks the work down into equally timed work batches and typically shortens project lead time considerably—up to 50%. However, even these well-planned projects included waste and unnecessary movement, as the researchers found out. Read the court decision
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Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

CAMBRIDGE MASSACHUSETTS BUILDING EXPERT DIRECTORY AND CAPABILITIES