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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“Bound by the Bond”
September 02, 2024 —
Daniel Lund III - LexologyA New York trial court granted judgment in favor of a performance bond surety on a construction project, based upon the failure of the claiming party to abide by the terms of the bond.
The “AIA Document A312” bond form – described by the court (quoting surety law authority) to be “one of the clearest, most definitive, and widely used type of traditional common law ‘performance bonds’ in private construction” – contains various procedures which must be honored as a “condition precedent to an action to recover” on the bond/against the surety. One of those prerequisites is a “declaration of default” concerning the contractor principal (here, a subcontractor).
The case involved the construction of an 85-story skyscraper in midtown Manhattan, and the performance of the subcontract for the building’s superstructure. The bonded contract was at a value of approximately $25,000,000 and obligated the sub to provide a performance bond “in a form similar to the [A312 bond],” and which was otherwise satisfactory to the obligee/construction manager.
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Daniel Lund III, PhelpsMr. Lund may be contacted at
daniel.lund@phelps.com
Cal/OSHA’s Toolbox Has Significantly Expanded: A Look At Senate Bill 606
December 13, 2021 —
Michael J. Studenka - Newmeyer DillionGovernor Gavin Newsom recently signed into law Senate Bill 606, set to take effect on January 1, 2022. With proponents of the bill citing the need to hold large employers accountable for COVID-related workplace hazards, SB 606 creates two new categories of employer violations. First, SB 606 creates a rebuttable presumption that if a type of violation is discovered at one particular worksite, Cal/OSHA can extrapolate that the violation is an “enterprise-wide” violation at all of the other company worksites. Additionally, SB 606 adds a new category of “egregious violations” to Cal/OSHA’s arsenal, adding a penalty multiplier for such violations. Finally, SB 606 increases Cal/OSHA’s investigative capabilities by authorizing Cal/OSHA to issue a subpoena to employers should they fail to “promptly provide” information requested during an investigation. As further explained below, the consequences of violating Cal/OSHA regulations has become significantly greater and more expensive, particularly for larger employers with multiple worksites.
ENTERPRISE-WIDE VIOLATIONS AND THE SEVERE REMEDIES THAT FOLLOW
Under SB 606, employers with more than one worksite will now face a rebuttable presumption that a violation at one location is actually “enterprise-wide” if either of the following are true:
- A written policy or procedure violates any Cal/OSHA standard, rule, order or regulation; OR
- Cal/OSHA finds evidence of a “pattern or practice” of the same violation being committed by the employer at one or more of its worksites.
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Michael J. Studenka, Newmeyer DillionMr. Studenka may be contacted at
michael.studenka@ndlf.com
Remembering Joseph H. Foster
April 20, 2016 —
White & Williams LLPWe are saddened to share the news of the loss of our longtime partner and good friend, Joseph H. Foster.
Mr. Foster was a nationally recognized trial attorney who began his career at White and Williams LLP in 1958, becoming a partner in 1963, and continued to practice law, coming into the office every day, until he was hospitalized before his passing. A true giant in the Pennsylvania legal community, Joe exemplified the best of the legal profession and was widely admired and respected among the bar and bench for his lasting and impactful contributions.
Mr. Foster served as the Chair of the Litigation Department and a member of the firm’s Executive Committee. During his tenure at White and Williams, he grew to become one of the most respected trial lawyers in Pennsylvania. He promoted a culture of excellence in client services and was the proverbial lawyer’s lawyer, treating his adversaries with courtesy and respect and always looking to find justice in the matters he handled. He was active in training at the firm, mentoring generations of trial lawyers and personally moving for the admission of hundreds of new attorneys at the firm, including an annual ceremony in Federal Court.
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White & Williams LLP
The Four Forces That Will Take on Concrete and Make Construction Smart
September 17, 2018 —
Massimiliano Moruzzi - Construction ExecutiveWhen it comes to building a bridge, what prevents it from having the most enduring and sustainable life span? What is its worst enemy? The answer is, simply, the bridge itself—its own weight.
Built with today’s construction processes, bridges and buildings are so overly massed with energy and material that they’re inherently unsustainable.
While concrete is quite literally one of the foundations of modern construction, it’s not the best building material. It’s sensitive to pollution. It cracks, stainsand collapses in reaction to rain and carbon dioxide. It’s a dead weight: Take San Francisco’s sinking, leaning Millennium Tower as an example.
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Massimiliano Moruzzi, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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How You Plead Allegations to Trigger Liability Insurer’s Duties Is Critical
November 01, 2021 —
David Adelstein - Florida Construction Legal UpdatesHow you plead allegations in your lawsuit to trigger duties of a liability insurance carrier is a critical consideration. If the complaint is not pled appropriately, it can result in the carrier NOT owing a duty to defend its insured, which is the party(ies) you are suing. If there is no duty to defend, there will be no duty to indemnify the insured to cover your damages. For this reason, in a number of circumstances, this is NOT what you want because you want to trigger insurance coverage and potential proceeds to be paid by a carrier to cover your damages. There are times when you are confronted with a case that just is not a good insurance coverage case. This may result in you coming up with creative arguments to maximize insurance coverage. Even in these times, you want to plead the complaint to best maximize coverage under the creative arguments you have developed.
An example of not pleading allegations in a complaint to trigger an insurer’s duties can be found in the Eleventh Circuit Court of Appeal’s decision in Tricon Development of Brevard, Inc. v. Nautilus Insurance Co., 2021 WL 4129373 (11th Cir. 2021). This case involved a general contractor constructing condominiums. The general contractor hired a subcontractor to fabricate and install metal railings. The subcontractor had a commercial general liability (CGL) policy that named the general contractor as an additional insured with respect to liability for property damage “caused in whole or in part” by the subcontractor’s direct or vicarious acts or omissions. (This is a good additional insured endorsement.)
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David Adelstein, Kirwin Norris, P.A.Mr. Adelstein may be contacted at
dma@kirwinnorris.com
Texas School System Goes to Court over Construction Defect
December 30, 2013 —
CDJ STAFFThe Zapata County Independent School District filed a lawsuit against Satterfield and Pontikes, claiming construction defect in two schools and two gyms that the company built for the district, according to the Laredo Morning Times. The company built two elementary schools, Zapata South and Fidel & Andrea Villarreal, and the gyms were built at Zapata North and Arturo L. Benavides. The case is scheduled to reach the courtroom in January, 2014.
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