President Trump Nullifies “Volks Rule” Regarding Occupational Safety and Health Administration (OSHA) Recordkeeping Requirements
April 13, 2017 —
Louis “Dutch” Schotemeyer – Newmeyer & Dillion LLPOSHA requires employers to maintain safety records for a period of five years. The Occupational Safety and Health Act contains a six month statute of limitations for OSHA to issue citations to employers for violations. In an effort to close the gap between the five years employers are required to keep records and the six month citation window, the Obama Administration implemented the “Volks Rule,” making recordkeeping requirements a “continuing obligation” for employers and effectively extending the statute of limitations for violations of recordkeeping requirements from six months to five years.
On March 22, 2017, the Senate approved a House Joint Resolution (H.J. Res. 83) nullifying the “Volks Rule” and limiting the statute of limitations to six months for recordkeeping violations. President Trump signed the resolution nullifying the “Volks Rule” on April 3, 2017. The nullification appears to be in line with President Trump’s stated goal of generally eliminating governmental regulations.
What Does This Mean for California Employers?
California manages its own OSHA program, which generally follows the federal program, but is not always in lock-step with Federal OSHA. Cal/OSHA, under its current rules, may only cite employers for recordkeeping violations that occurred during the six months preceding an inspection or review of those records. To date, there has been no indication that California’s Division of Occupational Safety and Health (DOSH) has plans to adopt the “Volks Rule.” Barring a change, California employers will continue to operate under the status quo and be required to maintain safety records for five years, but will only be exposed to citations for recordkeeping violations occurring within the last six months.
Current Cal/OSHA Recordkeeping Requirements
Cal/OSHA form 300 (also known as the “OSHA Log 300”) is used to record information about every work-related death and most work-related injuries that cannot be treated with onsite first aid (specific requirements can be found in the California Code of Regulations, Title 8, Sections 14300 through 14300.48). Currently, California Code of Regulations, Title 8, Section 14300.33 requires employers to retain OSHA Log 300 for a period of five years following the end of the calendar year during which the record was created, despite the fact that Cal/OSHA can only cite employers for failing to maintain such records for up to six months preceding an inspection.
Looking to the Future
Cal/OSHA is working on regulations that would require electronic submission of OSHA Log 300 records in California. This would bring Cal/OSHA more in line with Federal OSHA, which already requires electronic submission.
About Newmeyer & Dillion
For more than 30 years, Newmeyer & Dillion has delivered creative and outstanding legal solutions and trial results for a wide array of clients. With over 70 attorneys practicing in all aspects of business, employment, real estate, construction and insurance law, Newmeyer & Dillion delivers legal services tailored to meet each client’s needs. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer & Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949-854-7000 or visit www.ndlf.com.
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Louis "Dutch" Schotemeyer, Newmeyer & Dillion LLPMr. Schotemeyer may be contacted at
dutch.schotemeyer@ndlf.com
New York Restrictions on Flow Through Provision in Subcontracts
August 14, 2023 —
Bill Wilson - Construction Law ZoneMost subcontracts include a flow through provision (also called flow down and incorporation clauses) stating that the subcontractor and contractor are bound by the same obligations as set forth in the prime contract between the contractor and owner. Many jurisdictions interpret such provisions narrowly, as illustrated in a recent case out of New York. In Amerisure Insurance Company v. Selective Insurance Group, Inc., 2023 WL 3311879, the U.S. Court of Appeals for the Second Circuit affirmed the District Court’s interpretation of a flow through clause in a construction subcontract. The Amerisure case involved a dispute over insurance coverage for a personal injury to a subcontractor’s employee on a construction project. The owner of the project sought defense and indemnity from the general contractor (GC) and its insurance company, who in turn sought coverage for the owner as an additional insured under the subcontractor’s policy. The GC based its argument for coverage on the flow through provision in the subcontract.
The prime contract required the GC to procure commercial liability insurance including the owner as an additional insured for claims caused by the GC’s negligent acts or omissions. The subcontract likewise required the subcontractor to procure commercial general liability insurance but required only that the GC be named as an additional insured. However, the subcontract also included a flow through clause, binding the subcontractor to the terms of the prime contract and assuming toward the GC all the obligations and responsibilities that the GC assumed toward the owner. However, the subcontract did not expressly require that the subcontractor name the owner as an additional insured, and in order for the owner to qualify as an additional insured under the subcontractor’s insurance policy, the subcontractor must have agreed in the subcontract to name the owner as an additional insured.
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Bill Wilson, Robinson & Cole LLPMr. Wilson may be contacted at
wwilson@rc.com
Real Estate & Construction News Roundup (6/18/24) – Cannabis’ Effect on Real Estate, AI’s Capabilities for Fund Managers and CRE’s Exposure on Large Banks
July 15, 2024 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, hotel-to-apartment conversions take big leap, state governments pass squatting legislation, US regional banks risk having debt ratings downgraded, and more!
- Reclassifying cannabis as a lower-risk substance could bring significant changes to the real estate sector associated with cannabis. (Margaret Jackson, Yahoo)
- More than 60 of the largest banks in the country are at increased risk of failure due to their commercial real estate (CRE) exposures. (Florida Atlantic University).
- As extreme weather grows in frequency and intensity, the nation’s patchwork of building codes have not kept up with modern conditions and if something goes wrong, contractors are not off the hook if they simply build to code. (Julie Strupp, Construction Dive)
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Pillsbury's Construction & Real Estate Law Team
Policy Language Matters: New Jersey Court Bars Cleanup Coverage Under Broad Policy Terms
May 15, 2023 —
Stacy M. Manobianca - Saxe Doernberger & Vita, P.C. The New Jersey Appellate Division in
Handy & Harman v. Beazley USA Services, Inc., provided clarity regarding the interpretation of the Prior or Pending Litigation Exclusion in a site-specific environmental liability insurance policy.
In Handy & Harman, the Appellate Division affirmed the trial court’s determination that the insurer was not required to defend or indemnify its policyholder, a metal etching company. The court held that the Prior or Pending Litigation Exclusion (which applied to prior litigation and prior claims) barred coverage for natural resource damages sought in the current litigation because (1) an Administrative Consent Order (“ACO”) is a claim; and (2) the underlying lawsuit was based on the same environmental contamination as addressed in the ACO.1
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Stacy M. Manobianca, Saxe Doernberger & Vita, P.C.Ms. Manobianca may be contacted at
SManobianca@sdvlaw.com
In a Win for Design Professionals, California Court of Appeals Holds That Relation-Back Doctrine Does Not Apply to Certificate of Merit Law
December 20, 2017 —
Garret Murai - California Construction Law BlogThe year was 1995. The old guard was still in power in Sacramento. “Button-Down” Pete Wilson was Governor. Willie Brown, the self-nicknamed “Ayatollah of the Assembly,” was Speaker of the Assembly. And Bill “Huggy” Lockyer was Senate Pro Tem. Names that, for many reasons as of late, seem . . . well . . . let’s just say, “quaint.”
Their time, however, was coming to an end. Three years earlier, California voters approved Proposition 140, which instituted term limits for the first time in California. And by 1996, the first slate of legislators would be “termed out.” The immediate impact: It was the time for making deals because you didn’t know who would be keeping house next.
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Garret Murai, Wendel, Rosen, Black, Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
From the Ashes: Reconstructing After the Maui Wildfire
November 27, 2023 —
Grace Calengor - Construction ExecutiveOn Tuesday, Aug. 8, a wildfire on the Hawaiian island of Maui ravaged the town of Lahaina, killing nearly 100 people and stranding thousands of survivors, many of whom remain displaced today. The loss of life makes this the deadliest American wildfire on record, while the material cost in property damage has been estimated at upwards of $5 billion.
The response to the disaster has involved firefighters and other emergency personnel—and also engineering and construction professionals. One of them is Tam Kim, director of operations for West Maui Construction Inc., a civil contractor on the island. Originally from Oregon, Kim fell in love with Hawaii when he visited on a surfing vacation; eventually he took his technology background and helped found a startup company on Maui in 2008. Eight years later, the startup relocated to Oahu, but Kim stayed on Maui to forge a different path, one that would lead him somewhere he never imagined.
Reprinted courtesy of
Grace Calengor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Rio Olympic Infrastructure Costs of $2.3 Billion Are Set to Rise
January 31, 2014 —
Tariq Panja and David Biller – BloombergBrazilian authorities announced 5.6 billion reais ($2.3 billion) will be spent on infrastructure directly related to the 2016 Rio de Janeiro Olympic Games and those costs will rise as projects are added.
Yesterday’s announcement comes months behind schedule, and after pressure on public bodies to reveal exactly how much it will cost for Rio to be the first South American city to host the quadrennial showpiece. Delays and cost overruns to several projects related to this year’s soccer World Cup have sharpened the focus on the Olympics.
“We are committed to being on schedule,” Sports Minister Aldo Rebelo said at a press conference in Rio to announce the spending plans. “It is the first time we have a consortium of three levels of government. It is in an effort to ensure the success and execution of all the commitments to deliver the Olympics in Rio in 2016.”
Mr. Panja may be contacted at tpanja@bloomberg.net and Mr. Biller may be contacted at dbiller1@bloomberg.net.
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Tariq Panja and David Biller, Bloomberg
5 Questions about New York's Comprehensive Insurance Disclosure Act
February 14, 2022 —
Richard W. Brown & Michael V. Pepe - Saxe Doernberger & Vita, P.C.On December 31, 2021, New York enacted the Comprehensive Insurance Disclosure Act (“CIDA”), requiring defendants to provide plaintiffs with “complete” information for any insurance policy through which a judgment could be satisfied, within sixty (60) days after serving an answer. The stated goal is to reduce delay tactics by compelling disclosures of all policies implicated by a claim as well as other claims, contracts, or agreements that may deplete available coverage or residual limits of policies that have already been eroded by other payments. The impact of CIDA’s disclosure requirements may be scaled back by proposed amendments currently pending before the New York state legislature.
1. What does CIDA Require?
CIDA requires the automatic disclosure of insurance information to plaintiffs. New York’s Civil Practice Law & Rules (“CPLR”) 3101(f) permits civil discovery of the contents of existing insurance agreements by which an insurer may be liable for all or part of a judgment. However, CIDA amends the CPLR to mandate that defendants must automatically disclose the following information in all pending cases starting March 1, 2022, or within sixty (60) days of filing an answer to a complaint going forward:
- Complete copy of all insurance policies that are available to satisfy all or part of a potential judgment.
- This includes Primary, Excess, and Umbrella policies.
- The relevant applications for insurance.
Reprinted courtesy of
Richard W. Brown, Saxe Doernberger & Vita and
Michael V. Pepe, Saxe Doernberger & Vita
Mr. Brown may be contacted at RBrown@sdvlaw.com
Mr. Pepe may be contacted at MPepe@sdvlaw.com
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