Posts Tagged ‘Harmon & Davies’

Legal Punchlist November 2015

Legal Punchlist Newsletter (Nov. 2015)

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Posted in Construction | Comments Off on Legal Punchlist November 2015

“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! ‪#‎ExtraGive‬ ‪#‎IGiveExtra

 

Extraordinary Give

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Legal Punchlist Newsletter

Click to read our Legal Punchlist Newsletter4-30-15 Legal Punchlist Newsletter (Apr. 2015)

 

 

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The U.S. District Court for the Eastern District of Virginia recently held that a laborer hired by a subcontractor cannot sue the construction project’s general contractor for same-sex harassment. In the lawsuit, Matthew Allen alleged that an unidentified man from another company made sexual advances towards him. After reporting the incident to the general contractor, D.A. Foster Company, Inc., the man who allegedly made the advances was ejected from the worksite. Allen alleged, however, that he was continually harassed by coworkers who had heard about the incident. Allen filed suit against the general contractor, and Barnes Excavating, the subcontractor, alleging, among other counts, discrimination, hostile work environment, retaliation, and retaliatory termination in violation of Title VII of the Civil Rights Act.

The court held that claims against an employer under Title VII may only be brought by an employee, not an independent contractor, against an employer. To determine whether the claimant is an employee or independent contractor, courts weigh several factors of the conventional master-servant relationship. While no one factor is determinative, several factors are considered, including: the workers skill required; who provides the tools required; location of the work; duration of the relationship; the hiring party’s right to assign additional projects to the hired party; the extent of the hired party’s discretion over working time and hours; the method of payment; and whether the work is part of the regular business activities of the hiring party.

In the case at hand, D.A. Foster was the general contractor who subcontracted excavating work to Barnes. Barnes directly hired Allen as a laborer and assigned Allen to work on the project supervised by D.A. Foster. Although D.A. Foster provided some guidance and training for the project, and the company does regularly perform work in this industry, the level of control over Allen did not rise to the extent necessary to establish an employee-employer relationship. The court held that, with respect to D.A. Foster, Allen was an independent contractor. Most tools were provided to Allen by Barnes Excavating, not Foster. Allen worked under the direct supervision of and was paid by Barnes. The court found that Allen could not reasonably believe that he was an employee of D.A. Foster. Thus, the court granted summary judgment in favor of D.A. Foster.

While in the case at hand the general contractor was not subject to liability on the claim, employers still need to be weary of the current trend to try towards expanding the definition of who is the “employer.” Particular attention should continue to be paid to the IRS independent contractor test and, in particular, the most recent movement of the NLRB to redefine joint-employer status. The consequences of misclassifying an employee as an independent contractor can be significant. The case should also serve as a reminder to all contractors that they need to take steps to make sure that their jobsites are free from any kind of harassment.

This article is authored by attorney Lori L. Buntman 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, Disability Discrimination, Sex discrimination | Comments Off on Harassment on the Worksite; Can the General Contractor be Held Liable?

Legal Punchlist Newsletter

Click to read our Newsletter 4-1-15 Legal Punchlist Newsletter (Mar. 2015)

 

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Posted in Construction, Construction Contracts | Comments Off on Legal Punchlist Newsletter

Upon my arrival at the office this morning, after getting my coffee, I sat down at my computer and went to read BNA’s Daily Labor Report, as I do first thing almost every morning. After reading about the most recent actions in Congress seeking to block the NLRB’s Ambush Election Rules, I was attracted to an article that was entitled “English-Only Policy for Hospital Workers Violated Rights . . .” Since this is an issue that pops up regularly, I wanted to read the most recent case on the subject, so I opened the article and was surprised to find that this was an NLRB case, not an EEOC case. On March 18, 2015, Administrative Law Judge Lisa D. Thompson found that a Nevada health systems policy that required employees to speak English at all times when on duty violated Section 8(a)(1) of the National Labor Relations Act since it could restrict employees from engaging in discussions regarding terms and conditions of employment. The employer argued that its English only rule was based on guidance from the Equal Employment Opportunity Commission that allowed such rules for reasons of business necessity.

Not surprisingly, ALJ Thompson noted that this was an issue of first impression for the National Labor Relations Board, since no prior Decision of the NLRB had ever addressed the issue. Quoting from the Decision, the rule specifically “requires all employees to speak and communicate only in English ‘when conducting business with each other,’ ‘when patients or customers are present or in close proximity,’ and ‘while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.’” In seeking the finding that the rule was a violation of the National Labor Relations Act, Counsel for the General Counsel (in layman’s parlance – the prosecutor) argued that the rule was overbroad and that it inhibited employees, particularly non-native English speaking employees, from being able to freely communicate (in their native language) about working conditions and/or other terms or conditions of employment. As noted, the employer’s defense was based, at least in part, on current EEOC guidance. Although the Administrative Law Judge gave the appearance of analyzing the potential tension between Section 7 of the National Labor Relations Act and the EEOC Guidance, she dealt with this by quickly concluding that the employer’s rule was not justified by business necessity. With respect to the employer’s arguments that nothing in the rule prohibited employees from speaking in their own language on their own time, the Administrative Law Judge launched into a comparison of this rule with the Board’s traditional no-solicitation rule analysis.

Less surprisingly, the ALJ also found Employer rules prohibiting conduct that interferes with the Employer’s operations or brings “discredit” on the Employer, or making negative comments about co-workers or the hospital to be violative of the Act. Even though most Employers would consider these rules to be very reasonable, the Obama NLRB has been striking them down at a rapid rate.  Valley Health System 28-CA-123611

This case appears to represent yet another example of the NLRB’s willingness to expand the scope of its enforcement authority, even if it potentially conflicts with other administrative agencies. Accordingly, employers are advised yet again of the need to thoroughly review all of their existing rules and policies to avoid being found guilty of an unfair labor practice by the National Labor Relations Board.

This article is authored by attorney Thomas R. Davies 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 NLRB, NLRB | Comments Off on Hospital’s English-Only Rule Declared Unlawful by NLRB – Y Porque ellos? (Who?)

The Color Purple: An Award Winning Film; A Scary NLRB Decision

The 1985 film The Color Purple received several awards, but, surprising to many, no Oscars. The recent NLRB Decision in Purple Communications, Inc. may be popular with organized labor, but the employer community would only give it a Razzie.

In this long-expected Decision, the National Labor Relations Board, by a 3-2 vote, reversed its 2007 Decision in Register Guard. In Purple Communications, the Board majority (comprised of the three Democrat members) established a presumption that all employees with email access have a right to use the Company’s email system for any activity protected by the National Labor Relations Act. This includes both union organizing activity and other “concerted” activity involving wages, benefits, or working conditions. Although the majority indicated that this presumption could be overcome if certain “special circumstances” were established, they failed to articulate what might constitute such special circumstances.

At a recent conference, member Harry Johnson (one of two Republican dissenters) commented upon the fact that some of his fellow Board members lacked technological savvy. In reaching their underlying conclusion that restrictions on the rights of employees to use the Company’s email system constituted an unreasonable impediment to their ability to engage in protected activity, the majority demonstrated this lack of tech savvy by failing to properly take into account the numerous alternatives which now exist, such as Facebook, Instagram, Twitter, etc.

Fortunately, the Decision is limited in that it applies only to the Company’s employees, not non-employees, it only applies to the use of the Company’s email system, not other forms of electronic communications maintained by the employer, it only applies to those employees who are already authorized to use the Company’s email system, and is subject to “reasonable” restrictions, such as being used only during “non-work times.”

Members Miscimarra and Johnson, in dissent, criticize not only the legal rationale for the Decision, but also point out the numerous issues which will be created by the presumption established by the majority. For example, they note the difficulty, if not virtual impossibility, of distinguishing between the use of email during work time and non-work time. They also point out that while the majority theoretically recognized the right – and in some cases – the need (such as when there is an allegation of harassment involving the use of email) for employers to monitor its employees’ use of email, they underestimate the risk that such monitoring could lead to unfair labor charges of surveillance.

It is important to note that this Decision applies to all employers, not only those who are unionized. It is incumbent upon every employer to review their current electronic communication policy and consider revising it so that it is in compliance with the new NLRB-established standards. Alternatively, since this Decision will likely be appealed (or reversed by a future Board), employers could wait and see what develops. It would certainly be risky, however, to discipline anyone based upon a policy that was not consistent with Purple Communications.

This article is intended to provide 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 Tom Davies, Esq. or Laura Gallagher, Esq., Harmon & Davies, P.C., at 291-2236.

 

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Posted in Labor & Employment, NLRB, NLRB, Social Media | Comments Off on The Color Purple: An Award Winning Film; A Scary NLRB Decision

Does your business employ “temporary workers?” According to the American Staffing Association, there are almost 3 million temporary workers in the nation’s workforce today – many doing hazardous construction or manufacturing work. Recognizing the growth in the use of temporary workers, and having received reports of injuries to such workers, the Occupational Safety and Health Administration (OSHA) has embarked on a national initiative “to protect temporary workers in order to halt the rising toll of fatal injuries.”

In April 2013, OSHA started its “Temporary Workers Initiative” (TWI) in order to help prevent work-related injuries resulting from the use of temporary employees. The stated purpose of the TWI was to highlight employers’ responsibilities to ensure these workers are protected against workplace hazards. OSHA expressed concerns that (1) temporary workers are inadequately trained to perform tasks that may present significant safety dangers and (2) temporary workers are particularly vulnerable to pressure by host employers to avoid reporting of work-related injuries. As part of its initiative, OSHA issued its Injury and Illness Recordkeeping Requirements applicable to temp workers. These state that if the “host employer” using the temporary worker maintains day-to-day control over the worker, the host employer is responsible for recording injuries. But the staffing agency should maintain “frequent communication” with the host employer to make sure that any injury is properly reported.

OSHA’s Recommended Practices for Protecting Temporary Workers

In August of this year, OSHA issued its Recommended Practices for Protecting Temporary Workers. It applies to “temporary workers” who are supplied by a staffing agency to a host company, and are referred to as “temporary” even if their period of assignment with the host is lengthy or indefinite. The “Recommended Practices” are designed to ensure that such workers receive the same level of training and protection that existing workers receive. These temporary workers are supplied to a host employer by the staffing agency. Both the staffing agency and the host employer have responsibilities to ensure that the temporary workers are properly protected. Both are considered by OSHA to be that employee’s “joint employer” for the purpose of meeting OSHA requirements. The extent of the employer’s obligations varies depending on the job done by the temp and the workplace environment. OSHA’s “recommended practices” for protecting temporary workers are the following:

 

  1. Worksite evaluation. Before any temporary worker starts work for a host employer, both the staffing agency and the host employer should evaluate the latter’s worksite to which a worker might be sent, the anticipated job duties and the potential hazards and training the employee will need to safely use these facilities.
  2. Training staffing agency personnel. Noting that many staffing agencies do not have “dedicated safety professionals,” OSHA recommends that temporary agency staff should be trained to recognize safety and health hazards. Agency staff should be trained regarding the equipment workers may use and how to use it safely.
  3. Review agency and host training and safety records. The staffing agency should check to make sure the host employer meets the agency’s safety standards and training levels, and vice versa. The employer and agency should exchange each other’s safety records and review them to ensure compliance with safety standards. OSHA noted with approval that some employers will only hire temporary workers from agencies that adequately train the workers in safety.
  4. Assign and define responsibilities regarding safety. The staffing agency and host employer should assign occupational safety responsibilities and define the scope of an assigned employee’s work, and tasks to be performed, in a written contract. When possible, the contract should specify whether the agency or the host employer is responsible for safety and health issues.
  5. Injury and illness tracking and exchange of information. The employer and staffing agency should notify each other when injuries occur so both can be aware of the nature of the injuries and be better positioned to avoid such injuries in the future. OSHA requires that injury and illness records be maintained by the employer who is providing the day-to-day supervision of the employee. While the supervising employer is required to inform employees how to report work-related injuries and illnesses, both it and the staffing agency should inform the employee of this process. OSHA requires that injury/illness records be kept by the employer providing daily supervision of the temporary employee, usually the host.
  6. Conduct safety and health training and new project orientation. OSHA requires site-and task-specific safety training. Staffing agencies should provide general safety training applicable to different occupational settings. Host employers should provide temporary workers with safety training that “is identical or equivalent to that provided to the host employers’ own employees performing the same or similar task.” Temporary employees should be told how to report an injury and get treatment.
  7. Both staffing agencies and employers should have an injury and illness prevention program. Companies that do construction work must initiate and maintain accident prevention programs, provide for a competent person to conduct frequent and regular inspections, and instruct employees how to avoid unsafe conditions. 29 C.F.R. 1926.20, et. seq.   Employers should identify and track performance measures essential to evaluating the program’s effectiveness. Employers should conduct thorough investigations of injuries and illnesses.
  8. The staffing agency should maintain contact with temporary workers assigned to a host. The staffing agency (a) has the duty to inquire and, if possible, verify that the host employer has fulfilled its responsibilities for a safe workplace (b) should have a written procedure for workers to report any hazards and instances when the workers’ tasks were altered from those agreed upon with the agency. Both staffing agency and host employer should inform the workers how to report hazards and changes to the job tasks.

How Businesses Should Respond to OSHA’s Recommended Practices

The new OSHA-recommended practices make it clear that staffing agencies and host employers are jointly responsible for providing and maintaining safe working conditions for temporary employees. Both should be aware of these recommendations and ensure that they are followed to protect the safety of temporary workers employed on their premises, and to avoid complaints of alleged violations. The recommended practices will require more intensive assessment of safety-protective steps by the agency and host employer, along with follow up by each to ensure that these practices are followed in the work place. Every use of a temporary worker should be subject to a written contract between the agency and the host. The contract should define the training and safety responsibilities of each. Before temporary workers commence job duties, host employers should ensure that they are properly trained in the safety aspects of the jobs for which they are assigned and the places in which they will be performing them. Records should be kept of this training.

While aspects of this initiative may seem onerous, or unnecessary, there are many more problems that arise if the recommendations are ignored. In that event, such problems could impact workers’ health and lead to legal complications. OSHA’s initiative will give plaintiffs’ lawyers more ammunition to be used regarding complaints of workplace safety. It may lead to more complaints by would-be “whistleblowers” that their employments were adversely affected by negative reactions to reports regarding the adequacy of safety measures and/or safety related training. Since OSHA prohibits employers from retaliating against employees for exercising rights under the Act, temporary employees who make reports regarding safety should not be treated adversely as a result of the report. Staffing agencies and host employers should give safety training and compliance heightened focus as a result of OSHA’s initiative, for all these reasons.

This article is authored by attorney David A. Flores 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 OSHA | No Comments »

Joint Employer Status and the NLRB

Late last month, NLRB General Counsel Richard Griffin announced that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of the 181 pending charges against McDonald’s, USA, LLC and various of its franchises, in which the Board will allege that the company and its franchisees are joint employers. This decision goes against decades of decisions and case law and could potentially be devastating to the franchise system as we know it. If upheld, the determination would bring McDonald’s (with its deep pockets) to the bargaining table in connection with a wide variety of employment related claims. The financial strength of McDonald’s would make forming a union more attractive to workers. McDonald’s, and other franchise chains, may also have to step up its policing of franchises and spend more time and money monitoring stores to prevent labor infractions.

This announcement comes as the NLRB, in an unrelated case involving Browning-Ferris Industries of California, is reviewing its standard for determining when businesses should be considered joint employers. Traditionally, to establish joint employer status, there must be a right to control. Both legally separate employers must have direction or ability to co-determine the hiring, termination, wages, hours or any other essential terms and conditions of employment. In the Browning-Ferris Industries case, the Teamsters sought to represent a bargaining unit of employees who it claimed were jointly employed by BFI and its staffing agency. The Regional Director, however, determined that the company and the staffing agency were not joint employers with respect to workers at one of the company owned recycling facilities because BFI did not exert sufficient control over the agency workers. The Teamsters sought review of this decision, which was granted by the NLRB, finding this as their opportunity to expand the test for establishing joint employer status. In a very unusual move, General Counsel Griffin filed an amicus brief urging the Board to adopt a new broader standard.

What this means for all businesses: This potential new standard for determining joint employer status may leave more employers liable for alleged labor law violations and potentially force more companies to come to the bargaining table. This possible new standard will affect every business that subcontracts or outsources any function. It seems that it may become futile to try to avoid joint employer status and, instead, companies need to investigate business practices to make sure that any other company they are in business with is doing everything as close to 100% correct as possible. In the alternative, companies may need to explore the option of eliminating the use of certain contractors completely.  At a minimum, the company should be sure to include a strong indemnification provision to hold the individual contractors or suppliers responsible for any liability suffered as a result of their noncompliance with legal responsibilities. Of course any such indemnification will be meaningful only if the other party has the financial resources to back it up.

This article is authored by attorney Lori L. Buntman 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 NLRB, NLRB, Union | No Comments »

New Mechanics’ Lien Law Amendments

Last month, the General Assembly amended the Pennsylvania Mechanics’ Lien Law. The amendments will go into effect on September 7, 2014, which is 60 days after the passage date.

New Homeowner Protections. It has long been the law in Pennsylvania that subcontractors could lien property, even if the owner already made payment to the general contractor for the work. See Fahringer Corp. v. Newman, 1 Pa. D.&C.3d 115, 118 (C.P. Somerset Co. 1976). Under this old law, because an owner’s payment to a general contractor is not a defense to a lien, an owner could ultimately pay twice for the same work.

The revised Mechanics’ Lien Law changes this. Now, a subcontractor cannot lien residential property if the owner paid the full contract price to the general contractor. 49 P.S. § 1301 (effective September 7, 2014).

This new law is only applicable to residential properties. Regardless of this new protection, it is still advisable for owners to require lien waivers and diligent payment-tracking processes. For subcontractors, it is now very important to immediately address any delinquent payment issues.

New Lender Protections. The lending and title insurance industries was quite anxious after the 2012 Pennsylvania Superior Court decision, Commerce Bank v. Kessler, 46 A.3d 724. In Commerce Bank, the owner contracted to build a luxury home. The house was fully constructed; however, the owner failed to make payments to the homebuilder, and also failed to make payments on the mortgage. Both the bank and the homebuilder obtained default judgments. The bank believed its mortgage had priority lien rights against the property, based upon a provision in the Mechanics’ Lien Law.

The appellate court disagreed. It ruled that the mechanic’s lien took priority lien status over the mortgage. The court reasoned that the Mechanics’ Lien Law only affords priority lien status to open-end mortgages if the loan is used solely for “erection, construction, alteration, or repair.” As is typical, the loan in Commerce Bank included disbursements for tax claims, closing costs, pay-off of a prior mortgage, and other liens. Because of these other disbursements, the mortgage did not receive priority status.

Banks need not worry anymore. The amended Mechanics’ Lien Law provides that open-end mortgages take priority so long as 60% of the loan proceeds, at a minimum, go towards construction costs. The amendment also broadens the definition of construction costs to include common items paid by the loan, such as taxes, surveys, attorney’s fees, engineering fees, architectural fees, satisfaction of old mortgages, etc.

Entering contracts, getting paid, making payments, and litigating lien rights can be complicated. Owners, contractors, subcontractors, and lenders should double-check their contracts and seek proper legal advice.

What’s Happening Now . . .

7.5%

Construction Industry Unemployment Rate (unadjusted).

  • The construction industry added 22,000 jobs last month. This is the lowest unemployment rate in the construction industry since November 2007.

Source: Bureau of Labor Statistics, Series ID LNU04032231.  

* This Blog is not legal advice. Unlike this Blog, legal advice is specifically tailored to the facts, law, and objectives unique to each circumstance. To join or remove yourself from the subscription list, email jbright@h-dlaw.com or call 717-291-2236.

 

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Posted in Construction, Mechanics' Liens | No Comments »