“When you give extra, extraordinary things happen.” Today each of our employees choose an organization that was close to their heart and our firm made a donation in their name. We are proud to be a part of Lancaster County and take part in this wonderful event. We encourage you to do the same! Share the love! DONATE now! extragive.org #extragive #igiveextra
Most people probably think that “Show me the money!” is the Jerry McGuire quote that best describes lawyers. But that’s not true. The quote that best describes lawyers is “help me . . . help you.” And there are many things that a client can do to help his or her lawyer in a litigation case. Here are some simple, but effective, considerations for a win-win situation. Doing these four things will make your case more efficient, and success more probable.
1. Preserve Evidence. Your lawyer can only defend and prosecute your case with evidence. Also, the failure to preserve evidence can be used against you. Thus, Rule #1: Preserve Evidence. Start by identifying all the potential locations of evidence: Paper format; electronic devices; servers; cloud/online storage; and third party sources. These should be saved to ensure that evidence is preserved. After identifying the sources of documents, help your lawyer by culling and gathering the documents. It is also useful to specifically identify the documents that you think are most relevant to the case. Likewise, identify all potential witnesses and provide your attorney with the last known contact information.
2. Know you’re objective, and what you’re willing to settle for. At the beginning of the lawsuit, clarify your objectives. Consider the best-case outcomes; consider the worst-case outcomes. And consider the outcomes that you want to achieve. It is also best to consider what you’re willing to concede (or spend), in order to achieve the desired outcome.
3. Understand Risks. Nothing is certain. Nothing is promised. Nothing is guaranteed. Litigation is unpredictable. At least one major fact or witness will turn out completely different than anticipated. The law can be murky, too. An analogy: Imagine that you own a 2007 Honda CRV with a book value of $10,000. Now, imagine that you park the 2007 Honda CRV on the street with a “For Sale Best Offer” sign. What type of offer might you get? Would it matter if your CRV is sold in Lancaster, or Camp Hill, or Gettysburg, or West Chester? The book value might be $10,000; but the reality is that it will be sold on a specific day, at a specific location, with a specific buyer. You might get $10,000 exactly, but probably not. Likewise, the legal books might say that your dispute should be determined one way or another. But the reality is that it will depend on the specific facts of your case, with a specific judge or jury, in a specific location. Just like the sale of the CRV – litigation is not an exact formula.
4. Understand Negotiated Settlement. To avoid unpredictability, and to achieve finality, settlements are wise. But, to get something, you need to give something.
What’s Happening Now . . .
7.5 % Increase
Source: U.S. Census Bureau, July 2016 Construction at $1,153.2 Billion Annual Rate (Sep. 1, 2016).
This article is authored by attorney Jeffrey C. Bright 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.
On August 2, 2016, OSHA’s maximum penalties will increase by 78%. The penalty hike is the result of an interim final rule issued by the U.S. Department of Labor. The increase is intended to bring OSHA penalties, which have not been raised since 1990, in line with inflation.
Under the rule, serious and other than serious violations will now be capped at $12,471 per violation, rather than $7,000. Failure to abate violations, which are calculated on a per day basis, will receive an identical increase—$7,000 to $12,471. The cap on substantial penalties for repeated and willful violations increases from $70,000 per violation to $124,709.
These changes become effective for all citations beginning August 2, 2016. No matter when the violation occurred or when the investigation began, all OSHA penalties after August 1, 2016 will be calculated according to these new maximums.
OSHA’s 2015 Field Operations Manual remains the latest guidance as to how it determines an appropriate fine for violations. The primary consideration in determining penalty amounts is the “gravity of the violation,” which is determined by examining the severity of the injury that could have resulted from a violation, along with the probability that an injury could have occurred. It also allows for reductions in penalties depending on the employer’s size, whether the employer lacks a history of violations, and whether the employer was acting in good faith (i.e., wasn’t purposefully breaking the rules and had an effective safety and health management system in place).
Of course, the cheapest OSHA fine is the one never issued. Having a safety program in place and making sure that employees receive regular training on best safety practices is advisable. Companies should strive to create a culture in which safety always comes first—the increase in OSHA penalties is just one more reason why.
| Violation Type | Old Max Penalty | New Max After August 1 |
| Other than Serious | $7,000 | $12,471 |
| Serious | $7,000 | $12,471 |
| Failure to Abate | $7,000 a day | $12,471 a day |
| Repeat | $70,000 | $124,709 |
| Willful | $70,000 | $124,709 |
What’s Happening Now . . .
Source: BEA, U.S. Dept. of Commerce, News Release, Nat. Income and Product Accounts (July 29, 2016).
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.
This Newsletter is not legal advice. Unlike this Newsletter, legal advice is specifically tailored to the facts, law, and objectives unique to each circumstance.
On June 20, 2016, in Encino Motorcars, LLC v. Navarro, the Supreme Court decided not to defer to a US Department of Labor (DOL) rule that declared car dealerships’ service advisors eligible for overtime pay under the Fair Labor Standards Act (FLSA). Instead, in a 6-2 opinion, the Court found that the DOL did not provide a sufficient explanation as to why it departed from its long standing position that service advisors were ineligible for overtime under FLSA. The Court found the DOL’s scant rationale for its rule change impermissibly “conclusory” and sent the case back to the Ninth Circuit, leaving it to that court to determine, without deferring to the DOL rule, whether the FLSA overtime exemption covers service advisors.
As Justice Ginsburg noted in her concurring opinion, this ruling does not change the state of the law. Federal agencies have long been required to provide an “adequate reason” to justify a change in policy. However, the Court’s enforcement of that requirement serves as a potent reminder that it will not rubber stamp every new rule or interpretation an agency passes down.
The Court’s willingness to defer to an agency may very well become the central issue in the continually escalating dispute over whether Title VII and Title IX’s bar on sex discrimination includes discrimination on the basis of gender identity and sexual orientation.
While Title VII protects employees from discrimination and Title IX protects students, the laws are so similar that courts often look to rulings on one to help interpret the other. For that reason, although the highest appellate court decision on the gender identity issue, G.G. v. Gloucester County School Board, is a Title IX case, its eventual resolution may provide guidance as to the validity of the EEOC’s recent positions that discrimination on the basis of sexual orientation, which it has alleged in two recent suits, and on the basis of gender identity, a position the EEOC first enforced back in 2012, amounts to impermissible sex discrimination under Title VII.
Gloucester County School Board indirectly supports the EEOC’s positions. Applying the Auer doctrine, which instructs courts to give deference to an agency’s interpretation of its own ambiguous regulations unless the interpretation is unreasonable, the Fourth Circuit Court of Appeals determined that it owed the US Department of Education’s (DOE) interpretation of Title IX “controlling weight.” The DOE’s interpretation defined sex discrimination as inclusive of discrimination on the basis of gender identity, which contradicted the School Board’s policy of separating bathrooms by birth sex.
The School Board has announced its intention to appeal the Fourth Circuit’s decision to the Supreme Court. How the Court would rule is far from obvious: Though the Encino decision suggests the Supreme Court is not always amenable to deferring to an agency, the Court did recently pass up the opportunity to hear a case in which it could have overturned Auer. In the end, the Court may choose not to rule on an issue as decisive as the expansiveness of sex discrimination under Title VII and IX until it has regained a ninth justice. In the interim, expect the EEOC to continue enforcing its own interpretation.
For more information, contact an attorney at Harmon & Davies, P.C.
In March 2016 the Pennsylvania Department of Labor and Industry produced a white paper report on the “Administration and Enforcement of the Construction Workplace Misclassification Act in 2015.” Under the Act, the DLI investigates and penalizes construction companies that misclassify employees as independent contractors.
Here’s a quick snapshot from the Report:
But in 2013, under similar circumstances, the Pennsylvania Commonwealth Court held that the general contractor’s payments to the subcontractor did not afford protection, and the Prompt Payment Act did not shield the contractor and the surety from liability. Berks Products Corp. v. Arch Ins. Co., 72 A.3d 315.
Those are the cases of Workplace Misclassification that the Bureau of Labor Law Compliance has investigated in the past five years. Notably, there were more investigations in 2015 than the previous four years combined. Also, the investigations netted $217,450 in penalties, which is a 1,612% increase from the 2014 penalty amount. In fact, the Bureau only collected $12,700 in penalties in 2014. Point being, DLI is emphasizing the enforcement of this Act, and all construction companies should take a very close look at how they supply manpower to their projects.
The Workplace Misclassification Act applies to all construction companies working on all types of projects—public, private, residential, or commercial. The Act sets forth a checklist of considerations that are scrutinized when determining if a laborer on a project is actually an independent contractor. If the laborer is misclassified as an independent contractor—when in fact he is really an employee—DLI will levy a fine. In some instances, DLI has the authority to seek criminal prosecutions.
To comply with the Act, every independent contractor must have a written contract. Further, every laborer should be analyzed with consideration of the numerous other requirements under the Act. DLI generally receives its leads from (1) complaints filed by laborers; (2) findings made during construction site visits; and (3) referrals from other government agencies, particularly the Office of Unemployment Compensation Tax Services. To avoid penalties, it is best to review your laborers and seek legal advice as necessary.
What’s Happening Now . . .
11.2 % Increase
Source: U.S. Census Bureau News, February 2016 Construction at $1,144.0 Billion Annual Rate, U.S. Dept. of Commerce (Apr. 1, 2016).
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.
Pennsylvania’s Prompt Payment Act states that “once a contractor has made payment to the subcontractor . . . claims for payment against the contractor or the contractor’s surety by parties owed payment from the subcontractor . . . shall be barred.” The Contractor and Subcontractor Payment Act provides similar (but slightly different) language. This is referred to as the “safe harbor” clause.
In 2001, to the pleasure of the bonding industry, the Pennsylvania Commonwealth Court opined that the general contractor’s payments to the subcontractor barred a claim by the sub-subcontractor on the payment bond. Trumbull Corp. v. Boss Const. Inc., 768 A.2d 368. The court held that the Prompt Payment Act’s language absolved both the contractor and the surety of liability. Even though the subcontractor failed to pay a sub-subcontractor, the claim on the bond was dismissed.
But in 2013, under similar circumstances, the Pennsylvania Commonwealth Court held that the general contractor’s payments to the subcontractor did not afford protection, and the Prompt Payment Act did not shield the contractor and the surety from liability. Berks Products Corp. v. Arch Ins. Co., 72 A.3d 315.
The 2013 Berks Products case was widely seen as abrogating the Trumbull decision, and taking away the “safe harbor” provided by the Prompt Payment Act. But a close reading of Berks Products indicates that the Prompt Payment Act’s barring of claims will still be enforced—so long as the bond language is carefully written:
[T]he payment bond drafted by [Surety] . . . provided that the bond shall remain in full force and effect until such time as both [General Contractor] and any subcontractor . . . make full payment for any labor and/or materials . . . .
* * *
[Sub-subcontractor] was entitled to seek recovery under the Bond Law, and the “safe harbor” provision would generally be applicable to [General Contractor]. However, an issue arose as to whether the language of the payment bond . . . waived this provision.
Point being: the Prompt Payment Act’s “safe harbor” clause is still effective. But the bond should be written carefully, to reflect that payment from the Contractor will extinguish the bond obligations. If the bond states that payment by the Contractor and all Subcontractors will extinguish the bond, then, the court might treat it as a Berks Products bond, and hold that it waived the “safe harbor” provision.
When issues pertaining to payment bonds arise, it is best to seek legal advice early and often.
What’s Happening Now . . .
Residential Construction
Source: U.S. Census Bureau News, New Residential Construction in February 2016, U.S. Dept. of Housing (Mar. 16, 2016).
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.
On March 1, 2016, the Equal Employment Opportunity Commission (EEOC) took the long predicted, but unprecedented, step of filing complaints in federal courts against two private companies alleging that sexual orientation discrimination is a violation of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. For the last several years, the EEOC has been accepting and investigating such allegations involving private employers and last year ruled in a case involving a federal government employee that sexual orientation discrimination was “inherently” a form of sex discrimination under Title VII. To date, no federal appeals court has reached this conclusion and five Courts of Appeal have flatly rejected extending Title VII in this fashion.
To put this issue in a broader context, on July 21, 2014, President Obama issued Executive Order 13672 which amended Executive Order 11246 (issued in 1965) to include prohibitions against discrimination based on sexual orientation or gender identity, but the Executive Order only governs certain federal contractors. From 1994 through 2014, a version of the Employment Non-Discrimination Act (ENDA) was introduced in every session of Congress except for the 109th Congress (2004-2005.) Early forms of the legislation would have only prohibited discrimination by private employers of 15 or more employees based on sexual orientation, but beginning in 2007, the proposed legislation would have also prohibited discrimination based upon gender identity. Each of these versions of the bill included a religious exemption provision. It was thought that with the election of President Obama in 2008, together with Democrat control of the House and Senate that ENDA would become law in 2009 or 2010, but it seemingly got lost in a crowded legislative calendar. ENDA was not introduced in the current session of Congress. Rather, with broad backing from the LGBT community, a more comprehensive Equality Act was proposed which would prohibit discrimination based on sexual orientation and gender identity in employment, public accommodations, housing and a variety of other areas. Given the current makeup of Congress, its prospects of passage are not favorable.
Critics of the EEOC’s recent action argue that it is another example of the Obama administration’s willingness to use the administrative process to revise existing law. Advocates for the LGBT community argue, however, that the new lawsuits are a natural extension of the EEOC’s efforts to provide broad protection under Title VII. Persons on both sides of the issue will be carefully following the actions at the district court level.
The case against Scott Medical Center was filed in the Western District of Pennsylvania and alleges that a gay male telemarketing representative was subjected to a sexually hostile work environment based upon numerous offensive comments directed at him by his male supervisor pertaining to his sex life and other personal matters. The employee’s resignation in the face of this conduct is alleged to be a constructive discharge. The case appears to have been assigned to Judge Cathy Bisson, who was nominated to the Court in 2010 by President Obama. The other case, which was filed in Maryland, alleges that Pallet Companies d/b/a IFCO Systems violated Title VII by its treatment of a lesbian forklift operator which included comments directed to her by her male supervisor such as, “I want to turn you back into a woman” and “you would look good in a dress.” She was terminated a few days after registering complaints about this behavior to management and on an employee hotline. The EEOC alleges that this termination was unlawful. This case appears to have been assigned to Judge Richard D. Bennett, who was nominated to the Court by President George W. Bush in 2003. In both cases, in addition to the usual remedies, the EEOC is seeking that punitive damages be awarded to the complainants. It will be very interesting to watch how the courts handle these cases.
From a practice perspective, however, it is highly recommended that employers get ahead of this issue and modify, if necessary, their existing Discrimination and Harassment policies to include broad prohibitions against discrimination that include sexual orientation and gender identity as protected categories. The attorneys at Harmon & Davies, P.C. are available to discuss these matters with you in further detail.
Included in the budget signed by Congress and the President on November 2, 2015 was an increase in OSHA penalties. This is the first time OSHA penalties have increased in 25 years.
OSHA has yet to issue its interim final rule, clarifying the fine increases; however, it is anticipated that the standard fines will increase approximately 80 percent. Thus, the new fine schedule is anticipated to change as follows:
These new fine amounts will go into effect once OSHA issues a final interim rule, confirming the new fine amounts. The rule will go into effect by August 1, 2016, at the latest.
In the meantime, OSHA has continued to vigilantly enforce the standards. This month, a Lancaster County residential homebuilder was cited $64,400 in proposed penalties. The majority of the fines arose from two willful citations. One willful citation for $28,000 arose from three separate uses of forklifts to create a scaffold without proper fall protection. A second willful citation of $28,000 was for employees installing roofing shingles without the proper use of fall protection.
Certain common sense techniques are the best protection from OSHA citations. Emphasize safety by routinely training employees; create a safety program, and hire a safety director, if within the budget; and always prioritize safety on the jobsite. Also ensure that employees are familiar with the most common safety issues and proper protection. In 2015, the top 3 OSHA (construction) standards frequently cited for penalties were as follows:
When creating a safety program, it is best to rely upon specialized consultants. When resolving or defending OSHA citations, it is best to seek legal advice. Safety has always been a priority for construction companies; now, with the increase in fines, properly handling OSHA citations is too.
What’s Happening Now . . .
12.3%
Source: U.S. Census Bureau News, December 2015 Construction at $1,116.6 billion annual rate, US Dept. of Commerce (Feb. 1, 2016).
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
What’s Happening Now . . .
5%
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
| Legal Punchlist |
| What’s Happening Now . . .
10.7% · Increase in construction spending, year-to-date. · The first 10 months of 2015 have seen $888.1 billion in construction spending. · The first 10 months of 2014 were $802.3 billion. Source: U.S. Census Bureau News, October 2015 Construction at $1,107.4 Billion Annual Rate, U.S. Dept. of Commerce (Dec. 1, 2015). |
Mediation, Arbitration, and Litigation
| Construction contracts often reference either mediation, arbitration, or litigation. But what’s the difference between these three?
Mediation is the use of a third-party to conduct an informal meeting for the purpose of resolving the dispute. There is no judge or jury. It is merely a mechanism to get all the parties in the same room. Typically, but not always, the mediator is selected and hired by the parties to lead the settlement discussions. It’s also common for mediation conferences to start with all parties in a single room, discussing their grievances and desired outcomes. After the initial group discussion, it is common for each party to relocate to separate rooms, and the mediator will meet with each party individually, to facilitate points for discussion. Generally, a mediator is hoping to bring each party towards middle ground in search of a negotiated resolution. |
| It is important to ensure that mediation is conducted under the confines of 42 Pa.C.S.A. § 5949. This statute provides that the communications made in mediation are inadmissible as evidence in a court of law. This protection allows the parties to speak freely, in an effort to resolve the dispute. Settlement discussions are also inadmissible in a court of law, under Pa.R.E. 408. Best practice is for all parties to agree in advance, as a ground-rule of mediation, as to whether the statements are fair game for use in court at a later point.
Mediation does not result in a binding decision. It is merely an attempt to facilitate a negotiated settlement. Arbitration, on the other hand, is a formal procedure that results in a binding decision. Arbitration does not use a judge or jury. Instead, an arbitrator presides over the arbitration and acts as the “judge and factfinder.” Arbitrators are usually practicing attorneys who likely have a concentration or level of expertise in the specific area of applicable law. Arbitration is less formal than a trial in court; it is often held in a private office, or a conference room. Although less formal than a trial, the litigants must still present testimony and evidence, in a similar manner as if presenting their case in court. Sometimes, people use the terms “binding” or “non-binding” arbitration. These are misnomers. By definition, all arbitration is binding. If it is “non-binding arbitration” then, it is better defined as mediation. When agreeing to participate in mediation or arbitration, make sure that it is fully understood and agreed that the process is either binding or non-binding. The best way to make this clear is to use the proper terms: mediation is a non-binding; arbitration results in a binding decision. This should be clarified in writing, between the parties, as a ground-rule for participating in the process. Litigation, in contrast, is the use of the court process. At the time of entering the contract, and at the time of any dispute arising, it is important to know whether the contract requires mediation, arbitration, or litigation. |
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
