Posts Tagged ‘Construction Law Attorney’

Construction Law Newsletter January 2016

What’s Happening Now . . .

       5%

  • Unemployment rate for December 2015.
  • Construction gained 45,000 jobs in December; a third straight month of job gains.
  • 263,000 construction jobs were gained in 2015.

Source: U.S. BLS, News Release: The Employment Situation – December 2015 (Jan. 8, 2016).

 

So You Want to Litigate – What Happens Next?

Going into a lawsuit, it is important to understand the process. Some clients think that once a lawsuit is filed, it is only a matter of time—perhaps days, or weeks—before the claim is resolved.

That happens sometimes. But not always.

Lawsuits generally have three phases: Pleadings; Discovery; and Trial. Each phase is distinct, but the timing of Pleadings and Discovery sometimes overlap.

In the Pleadings phase, the parties file written statements setting forth their narratives of the case. Each side files with the court a signed statement setting forth the facts upon which they claim to be entitled to a remedy (or defense).

In the Discovery phase of the lawsuit, parties develop the evidence to support their case. Parties can send written questions (interrogatories) and may request documents to be produced. Parties can also depose witnesses. While objections can be lodged to the discovery requests, parties should know that, generally, any documents, including emails, letters of correspondence, internal communications, and notes are likely to be discoverable and will be produced in the lawsuit. Communications between client and attorney, however, are confidential and privileged.

Once the parties have gathered sufficient evidence, the case is listed for trial. Leading up to trial, parties will identify the exhibits they intend to use and the witnesses they intend to call. The attorneys will write briefs setting forth summaries of their client’s positions. At trial, the parties use the written discovery responses, deposition transcripts, and documents to argue their case to the judge or jury. Cases usually take at least one year to resolve, and they often take several years

During each phase of the suit, there are natural points for settlement discussions. It is common to raise settlement negotiation after the close of Pleadings, or after an important deposition. Sometimes, an upcoming, expensive aspect of the lawsuit—such as a motion, or trial itself—will cause parties to negotiate a settlement in order to avoid the expense of the upcoming task.

As a general rule of thumb, settlements are most efficient early. The purpose of settlement is to avoid the costs of litigation and to limit the exposure to a potentially bad verdict. If the lawsuit has already been litigated through Pleadings and Discovery, many of the litigation costs have already been incurred; thus, settling the matter at that point cannot avoid the costs. When a lawsuit is pending, it is important to seek legal advice immediately to determine the best legal arguments and proper management of the case.

Newsletter written by Jeffrey C. Bright, Esq. , an attorney licensed in Pennsylvania and Maryland. For more information, contact an attorney at Harmon & Davies, P.C.

Employment          Construction           Business

2306 Columbia Ave. | Lancaster, PA 17603

T: 717.291.2236 | www.h-dlaw.com

 

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Posted in Construction, Litigation | Comments Off on Construction Law Newsletter January 2016

A New York City contractor recently agreed to pay nearly $1 million dollars to settle a prevailing wage investigation into complaints that one of its subcontractors on a public housing project underpaid 31 masonry workers and bricklayers.  The contractor also agreed to pay $100,000 in back wages to four of its laborers, plus $50,000 in costs and fees to the state.

The New York Attorney General’s prevailing wage investigation revealed that for over a year, the contractor’s subcontractor paid masonry workers and bricklayers between $16 to $22 dollars per hour, with no overtime premium, for work that should have been paid at a prevailing wage rate of between $53.55 to  $72.44, plus supplemental benefits.  The investigation further revealed two instances where the contractor failed to classify or list employees in its certified wage payroll reports and two other instances where employees were misclassified at pay rates below what they should have been paid.

The New York Attorney General’s office said that in addition to requiring government contractors to pay wages and benefits comparable to local norms for a given trade, federal and state prevailing wage laws also hold general contractors responsible for underpayments by their subcontractors.

The settlement mandated that the contractor’s contracts with any subcontractor on public or private construction projects state that compliance with labor laws is a material term of the contract and that the subcontractor may be terminated if it does not fix labor law violations brought to its attention.

According to New York’s Attorney General, his office will hold contractors accountable for their prevailing wage violations and for their lax oversight of subcontractor’s practices.

Lesson:  Contractors need to pay attention to their subcontractor’s payment practices.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Public Works | No Comments »

Homebuilder Battles NLRB over Arbitration Clause

National homebuilder, D.R. Horton, Inc. is embroiled in a legal battle with the National Labor Relations Board (“NLRB”) over whether a provision in its employment contracts requiring its employees to engage in a mandatory arbitration agreement that waived the employees’ rights to participate in class or collective actions violated the employees federally protected right to engage in “concerted activity” for their mutual aid and protection.

The dispute arose when one of the homebuilder’s superintendents filed a charge with the NLRB alleging that he and other employees were prevented from pursuing claims that they were misclassified as exempt workers under the Fair Labor Standards Act by virtue of the homebuilder’s allegedly illegal dispute resolution procedure that blocked employees from pursuing class or colletive actions in court or in arbitration.  The NLRB sustained the charge and the case was appealed all the up to the U.S. Court of Appeals for the Fifth Circuit.

The case was argued before the Fifth Circuit earlier this month.  The NLRB’s attorney argued that the National Labor Relations Act (“NLRA”) gives employees the right to engage in concerted activity for their mutual aid and protection and that the homebuilder’s broadly worded arbitration policy interfered with the opportunity of employees to obtain class or collective litigation of their employment-related claims in addition to their right to assert claims in a concerted manner.  The homebuilder’s attorney argued that never before has the NLRB found that the NLRA gives employees the right to engage in class or collective litigation and that the NLRA contains “no clear congressional mandate” making the dispute resolution procedure used by the homebuilder illegal.  According to the homebuilder’s attorney, vague references to concerted activity in NLRB decisions does not demonstrate a clear congressional mandate under the NLRA that would justify the court in denying the enforcement of an otherwise lawful arbitration agreement.  A decision is awaited.

The Fifth Circuit’s rulings could have a significant impact on how builders and employers in general draft their dispute resolution provisions.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Posted in Construction, Labor & Employment, NLRB | No Comments »