When Your “Private” Project Suddenly Turns into a “Public” Project. Hint: It Doesn’t Necessary Turn on Public Financing or Construction
September 28, 2017 —
Garret Murai - California Construction Law BlogIn 1931, during the Great Depression, the federal government enacted the Davis-Bacon Act to help workers on federal construction projects. The Davis-Bacon Act, also known as the federal prevailing wage law, sets minimum wages that must be paid to workers on federal construction projects based on local “prevailing” wages. The law was designed to help curb the displacement of families by employers who were recruiting lower-wage workers from outside local areas. Many states, including California, adopted “Little Davis-Bacon” laws applying similar requirements on state and local construction projects.
California’s current prevailing wage law requires that contractors on state and local public works projects pay their employees the general prevailing rate of per diem wages based on the classification or type of work performed by the employee in the locality where the project is located, as well as to hire apprentices enrolled in state-approved apprentice programs and to make monetary contributions for apprenticeship training.
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Garret Murai, Wendel Rosen Black & Dean LLPMr. Murai may be contacted at
gmurai@wendel.com
New Jersey Court Upholds Registration Requirement for Joint Ventures Bidding on Public Works Contracts
December 16, 2023 —
Nicholas J. Zaita & Brian Glicos - Peckar & Abramson, P.C.Introduction
In a matter of “first impression,” on November 30, 2023, the Appellate Division affirmed the New Jersey Superior Court decision in
Ernest Bock & Sons-Dobco Pennsauken Joint Venture v. Township of Pennsauken and Terminal Construction Corp., finding that the New Jersey Public Works Contractor Registration Act, N.J.S.A. 34:11-56.48 to -56.57 (“PWCRA” or the “Act”), applies to a joint venture formed for the sole purpose of bidding on a public works contract. Therefore, the Court held that the PWCRA requires any joint venture bidding on public works projects in New Jersey to be registered under the Act at the time of bid submission. Accordingly, the Township of Pennsauken acted within its authority and properly rejected the bid submission of the Ernest Bock & Sons-Dobco Joint Venture which was not registered under the Act in the name of the joint venture at the time of its bid submission, despite the individual members of the joint venture being registered.
Reprinted courtesy of
Nicholas J. Zaita, Peckar & Abramson, P.C. and
Brian Glicos, Peckar & Abramson, P.C.
Mr. Zaita may be contacted at nzaita@pecklaw.com
Mr. Glicos may be contacted at bglicos@pecklaw.com
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A Reminder to Get Your Contractor’s License in Virginia
April 25, 2023 —
Christopher G. Hill - Construction Law MusingsHow are ducks and contractors alike? A question I get often, particularly from construction contractors outside of Virginia is whether they need to get a Virginia contractor’s license. The answer is almost invariably “yes.” The next question is why? The answer is almost always “Because state law says so.” With some minor exceptions for material suppliers and the like, Virginia law requires that all of those that perform construction for others carry the proper license and specialization for the work performed. There is no exception for the proverbial “paper contractor” that takes money from an owner and subcontracts all of the actual physical work. It does not matter if you use a different term for what you do for the owner. If it walks like a duck and quacks like a duck. . .its a duck. If you take money to perform construction, you’re a contractor.
Some of the consequences of contracting without a license (aside from possible criminal charges) include among other things, the inability to perfect a mechanic’s lien under Va. Code 43-3(D) and, with minor exceptions, the ability to enforce a contract (meaning it really hurts your ability to get paid).
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Privacy In Pandemic: Senators Announce Covid-19 Data Privacy Bill
May 11, 2020 —
Kyle Janecek & Jeffrey Dennis – Newmeyer Dillion"Data! Data! Data!. . . I can't make bricks without clay." This classic statement from Sherlock Holmes in The Adventure of the Copper Beeches takes on a new meaning in the COVID-19 pandemic. With the plans to begin contact tracing the spread of the COVID-19 pandemic slowly moving towards the forefront, a valid and important issue presents itself: how do we treat and protect the data we so desperately need to trace, track, and address the pandemic? U.S. Senators Wicker, Thune, Moran, and Blackburn introduced a possible solution to this problem with the COVID-19 Consumer Data Protection Act, as announced on April 30, 2020. So what does the Act entail? What information is protected? What action would businesses need to take towards individuals, such as consumers or even employees, in order to comply with this new legislation?
WHAT IS THE COVID-19 CONSUMER DATA PROTECTION ACT?
The Act is meant to address the concern regarding data collection and privacy due to large companies, like Google and Apple, adjusting the software within their devices to facilitate digital contact tracing. The Act can be broken up into three parts - the treatment of information; the privacy notice requirements; and the transparency requirements.
First, the Act prohibits the collection, processing, or transfer of certain categories of data without notice and the affirmative express consent of the individual, in order to:
- Track the spread of COVID-19,
- Trace the spread of COVID-19 through contact tracing, or
- Determine compliance with social distancing guidelines without the requisite notice to individuals and their express consent.
To accomplish this, the Act also restricts entities in their ability to collect excessive information, stating that an entity cannot collect information beyond what is reasonably necessary to conduct any of the three COVID-19 related purposes listed in the statute. The entity must also provide reasonable administrative, technical, and physical data security policies and practices to protect the information collected. Furthermore, in the event that the entity stops using the information for any of the three COVID-19 purposes, it must delete or de-identify the information it has collected.
Next, the Act describes the requirements for notice to individuals. In order to legally collect, process or transfer the information, the entity needs to provide the consumer with prior notice of the purpose, processing, and transfer of the data through their privacy policy within 14 days of the enactment of the law. This policy would have to:
- Disclose the consumer's rights in a clear and conspicuous manner prior to or at the point of collection,
- Be available in a clear and conspicuous manner to the public,
- Include whether the entity will transfer any of the information it collects in order to track or trace COVID-19 or determine compliance with social distancing,
- Describe its data retention policy, and
- Generally describe its data security measures.
Notably, many of these are already requirements common to many privacy policies, including the disclosure regarding the transfer of an individual's information.
In addition, an individual must give their affirmative express consent to such collection, processing and transfer. In other words, an individual must "opt-in" to having their information collected. This would be done through a checked box or electronic signature, as the law prohibits entities from inferring consent through a failure by the individual to take an action stopping the collection. Furthermore, the individual would also need the ability to expressly withdraw their consent, with the entity then having to cease collection, processing, or transfer of the information within 14 days of the revocation. In essence, due to the restriction on transferal, this may result in businesses opting to delete or de-identify data upon a revocation.
Finally, the entity would have to abide by certain reporting and transparency requirements, namely a monthly public report stating how many individuals had information collected, processed or transferred, and describing the categories of the data collected, processed or transferred by the entity and why. This is akin to the California Consumer Privacy Act's treatment of categories of information, though it would require this information to be released on an ongoing, monthly basis.
WHAT DATA IS COVERED?
Notably, the Act only affects a very limited scope of data. The Act covers geolocation data (exact real-time locations), proximity data (approximated location data), and Personal Health Information (any genetic/diagnosis information that can identify someone). This could cover information like Bluetooth communication or real-time tracking based on a cell phone's geolocation features. Notably, Personal Health Information does not include any information that may be covered under HIPAA or the broader categorization of "Biometric" data (i.e. retinal scans, finger prints, etc). Furthermore, and more generally, "publicly available information" is excluded, which includes information from telephone books or online directories, the news media, "video, internet, or audio content" as well as "websites available to the general public on an unrestricted basis." The latter of which potentially would push any and all information made available through social media (i.e. Facebook or Twitter) into the definition of "publicly available information."
HOW IS IT ENFORCED?
Generally, the law would be enforced by the FTC, under the provisions regarding unfair or deceptive acts or practices, similar to other enforcement actions arising out of privacy policies. Notwithstanding, state attorney generals may also bring actions to enforce compliance and obtain damages, civil penalties, restitution, or other compensation on behalf of the residents of the state.
WHAT SHOULD MY COMPANY DO?
If your entity plans on collecting information for tracking COVID-19, measuring social distancing compliance, or contact tracing, it is advisable to include language in your privacy policy now. This could be as simple as adding an additional provision within your privacy policy stating that the entity will retain information to conduct one of the three COVID-19 purposes as laid out in the statute. In addition, this also means that should the entity collect and use employee information for contact tracing, tracking the spread of COVID-19 or ensuring compliance with social distancing measures, it will need to disclose some of the specifics of that process to the employees and have them opt-in for the process. Finally, for contact tracing purposes, any individual that shares their diagnosis will have to opt-in for the entity to legally collect, process, and transfer that information to others.
While the time to reach compliance is unknown, it is more important than ever to form a compliance plan for privacy legislation if you do not already have a plan in place. If you decide to prepare with us, our firm has created a 90 day California Consumer Privacy Act compliance program (which can be expedited) where our team will collaborate with you to determine a scalable, practical, and reasonable way for you to meet your needs, and we will provide a free initial consultation. For further inquiries or questions related to COVID-19, you can consult with a Task Force attorney by emailing NDCovid19Response@ndlf.com or contacting our office directly at 949-854-7000.
Kyle Janecek is an associate in the firm's Privacy & Data Security practice, and supports the team in advising clients on cyber related matters, including policies and procedures that can protect their day-to-day operations. For more information on how Kyle can help, contact him at kyle.janecek@ndlf.com.
Jeff Dennis (CIPP/US) is the Head of the firm's Privacy & Data Security practice. Jeff works with the firm's clients on cyber-related issues, including contractual and insurance opportunities to lessen their risk. For more information on how Jeff can help, contact him at jeff.dennis@ndlf.com.
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Yet ANOTHER Reason not to Contract without a License
October 25, 2021 —
Christopher G. Hill - Construction Law MusingsRemember when I stated that you cannot lawfully perform construction work in Virginia without a contractor’s license? Remember when I said that you risk non-payment if you do so? If you needed another reason, a relatively recent Virginia Court of Appeals decision upholding a criminal conviction for performing construction work without a license should be that reason.
In Riddel v. Commonwealth, the Court took up an appeal from the conviction of Jeff Riddel where Mr. Riddel was verbally asked by homeowners to inspect and then repair their septic system. Mr. Riddel then contracted with Fairfax Suburban Septic to pump out and repair the system. Mr. Riddel then delivered the homeowners an invoice from Fairfax Suburban Septic and instructed the homeowners to pay Fairfax Suburban Septic directly. After payment, the homeowners became aware that the work was not completed and that neither Mr. Riddel nor his subcontractor was licensed to perform septic work in Virginia.
During the trial, Mr. Riddel argued on a Motion to Strike the Commonwealth’s evidence that (1) he merely arranged for licensed contractors to perform the repairs to the septic system, arguing that Virginia Code §§
54.2-801 to 802 permitted Riddel to arrange the work without a contractor’s license and (2) no written contract to perform a septic inspection or repairs existed. The Circuit Court denied the motion and Mr. Riddel was convicted under Va. Code 54.1-111 for performing the work without a license. Needless to say, he appealed.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
How New York City Plans to Soak Up the Rain
May 02, 2022 —
Linda Poon - BloombergWhen the remnants of Hurricane Ida pummeled New York City with more than 3 inches of rain in just one hour, the city struggled to soak it up. Instead, streets and subways flooded as storm drains were overwhelmed, basement apartments were inundated, and more than a dozen people died.
That September 2021 storm and the ones before it, including a cloudburst downpour during Tropical Storm Elsa in July, have forced New York to take a hard look at becoming a “spongier” city — one that combines nature-based green infrastructure like street-side rain gardens with gray infrastructure like storm drains to divert or absorb water and prevent catastrophic flooding.
“New York City is preparing for both chronic storm events — these cloudburst events that we see occurring more and more frequently — as well as extreme storm events like Ida,” says Jennifer Cherrier, a professor of earth and environmental sciences at Brooklyn College. On top of that, the city also faces mounting risks from storm surges, like during Hurricane Sandy in 2012.
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Linda Poon, Bloomberg
Creating a Custom Home Feature in the Great Outdoors
July 09, 2014 —
Beverley BevenFlorez-CDJ STAFFWhen a resort designer and a spa director join together to create a custom home, what do you get? An outdoor tub that resides on a balcony overlooking the San Francisco Bay.
According to Custom Home, Scott Lee, president of SB Architects, and his wife had the “custom cast concrete tub…craned into place on the third-story deck while avoiding an established oak tree.” A radiant heat lamp makes the outdoor bathing area practical, while the curved backrest, remote controlled dimmable lights, and music make the experience luxurious.
“Tubs are more about relaxing then getting clean,” Lee told Custom Home. “Being out here among the branches with views of San Francisco, it really is like a resort.”
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The Biggest Change to the Mechanics Lien Law Since 1963
December 08, 2016 —
Wally Zimolong – Supplemental ConditionsThe New Year will bring with it the biggest change to Pennsylvania’s Mechanics Lien Law since the current law was passed in 1963. These changes will impact owner, contractors, and subcontractors equally. However, the biggest benefits will probably be for real estate developers and other project owners.
On December 31, 2016, Pennsylvania will go live with a website known as the State Construction Notices Directory. On that date, owners will have the option of making projects costing $1,500,000 or more “searchable projects.” An owner makes a project a searchable project by filing with the Notices Directory a “Notice of Commencement” before works begins. The Notice of Commencement must include the name, address, and email address of the contractor, full name and location of the searchable project, the county where the project is located, a legal description of the searchable property, and the name address, and email address of the searchable project owner. Importantly, the owner must also post a copy of this Notice of Commencement at the project site.
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Wally Zimolong, Zimolong LLCMr. Zimolong may be contacted at
wally@zimolonglaw.com
