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Posts Tagged ‘Jeff Bright’

Help Me . . . Help You

by HDlawblog Posted: Wednesday, 9/21/2016

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

Through July 2016, spending on private construction is up 7.5%, compared to 2015.
Spending on public construction is up 0.2%.
Total construction spending is up 5.6%.
Residential construction spending is up 6.5%.
Non-residential private construction spending is up 5.1%.

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.

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Tags: Camp Hill, construction, construction law, Employment and Labor Law, Gettysburg, Harmon & Davies, Jeff Bright, Jeffrey Bright, Lancaster, Legal Punchlist, Pennsylvania Construction Attorney, preserve evidence, residential construction, settlement, Show me the money, understand risks, West Chester
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OSHA Gets a Bigger Stick

by HDlawblog Posted: Friday, 7/29/2016

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 . . .

The U.S. Economy grew at 1.2% for the second quarter of 2016.

Growth hasn’t topped 2% since the second quarter of 2015.

The second estimate for the second quarter will be released August 26, 2016.

In 2013 and 2014, quarterly growth exceeded 2% in 6 of 8 quarters.

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.

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Tags: construction, Harmon & Davies, informal conference, Jeff Bright, Jeffrey Bright, OSHA, OSHA contest, OSHA fine, OSHA inspection, penalty, Pennsylvania Construction Attorney
Posted in Construction, Safety | No Comments »

PA Workplace Misclassification Act

by HDlawblog Posted: Friday, 4/29/2016

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

Increase in construction spending for first two months of year, comparing 2015 to 2016.
Construction spending for January & February 2015 was $141.3 billion.
Construction spending for January & February 2016 was $157.1 billion.

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.

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Tags: Berks Products Corp. v. Arch Ins. Co, Bureau of Labor Law Compliance, construction law, contract, contractor, Department of Labor, department of labor and industry, DLI, DOL, employee, Harmon & Davies, independent contractor, Jeff Bright, Jeffrey Bright, L&I, penalty, Pennsylvania Construction Attorney, prompt payment act, subcontractor, Workplace Misclassification
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Trumbull and Berks Products Payment Bonds

by HDlawblog Posted: Thursday, 3/31/2016

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.

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

Indicators of new residential construction were improved, comparing Feb. 2016 to Feb. 2015.
Building Permits: Feb. 2016 is 6.4% above Feb. 2015.
Housing Starts: Feb. 2016 is approx. 30.9% above Feb. 2015.
Housing Completions: Feb. 2016 is 17.5% improvement.

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.

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A New Era for OSHA

by HDlawblog Posted: Monday, 2/29/2016

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:

“Serious violations” and “other than serious violations” previously were a maximum fine of $7,000; they are likely to increase to a maximum fine of $12,600.
“Willful violations” and “repeat” violations previously were a maximum fine of $70,000; they are likely to increase to a maximum fine of $126,000.

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:

Fall Protection.
Scaffolding.
Ladders.

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%

2015 Increase in private construction spending.
2015 had private construction spending of $806.1 billion.
2014 had private construction spending of 717.7 billion.

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

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Tags: "willful violation", Construction Law Newsletter, fall protection, Harmon & Davies, Jeff Bright, Jeffrey Bright, ladders, Lancaster County, Occupational Safety and Health Administration, OSHA, OSHA citation, OSHA penalties, repeat violation, repeat violations, residential homebuilder, Scaffolding, serious violation, serious violations, willful violations
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Construction Law Newsletter January 2016

by HDlawblog Posted: Friday, 1/29/2016

What’s Happening Now . . .

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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Tags: Complaint, Construction Law Attorney, Discovery, Employment and Labor Law Attorney, Employment Attorney, Evidence, Harmon & Davies, Jeff Bright, Jeffrey Bright, Judgment, lawsuit, litigation, Long, Motions, Negotiation, Objections, Pennsylvania construction law attorney, Pleading, Procedure, settlement, Sued, Summary Judgment, Trial
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A Construction Law Newsletter Provided by Harmon & Davies, P.C.

by HDlawblog Posted: Monday, 12/21/2015

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

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