Title: DUNLEVEY, MAHAN
1DUNLEVEY, MAHAN FURRYMIDWEST ROOFING
CONTRACTORS ASSOCIATIONOctober 2009
2PROVISIONS INCORPORATING OTHER DOCUMENTS
- While it is not unusual for a subcontract
agreement to incorporate other documents, most
subs do not familiarize themselves adequately
with those provisions, and, thus, they are not
aware as to what they have agreed - Extraneous documents incorporated by reference
can be problematic because the documents may be
in conflict with each other and with the
subcontract agreement
3- Look to see if the subcontract agreement
has a provision that sets forth which document
controls in the event of a conflict between
them. If there is no such provision, one
should be added to the subcontract agreement
providing that in the event of such a conflict,
the subcontract agreement controls
4PROVISIONS INCORPORATING OTHER DOCUMENTS
- Typically, subcontract agreements incorporate
by reference extraneous documents such as - the prime contract
- specifications
- general conditions
- bid documents
- special conditions
- addenda thereto
- others
5ASSUMING TO GC HIS DUTIES TO OWNER
- Subcontract agreements typically provide
that the sub is assuming all obligations
to the general that the general owes to the
owner with respect to the subcontracted work - These are very sweeping provisions, but
are not uncommon - Again, a sub should be sure what
duties it is assuming
6PRIOR INSPECTION PROVISIONS
- Subcontract agreements sometimes contain
provisions requiring the sub to have, prior to
performing any work, thoroughly visited and
inspected the site to determine any problems
with the plans and specs, or to discover the
exact condition of the site - This is an attempt to avoid having to pay the
sub for differing site conditions -
7- If you cannot delete such a provision, it
should at least be softened by adding the
concept that the sub shall provide notice of any
error within a reasonable time after the sub
discovers them, regardless of whether the sub
has yet begun work
8UNREASONABLE INDEMNIFICATION PROVISIONS
- Be careful of overly-broad indemnity
provisions - It is reasonable for the sub to indemnify
the general for matters arising out of the
subs work or fault -
9- It is also reasonable for the sub to
indemnify the general for anything arising
from the work of others who the sub
supervises (i.e. subs Employees or
sub-subcontractors) - It is not reasonable for the sub to
agree to indemnify the general for the
negligence of somebody else, especially for
the generals own negligence
10UNREASONABLE INDEMNIFICATION PROVISIONS
- Indemnification provision may expressly state
that sub will indemnify general for something
caused by generals or owners own negligence - Or, may be written so broad as to include
things caused by generals or owners own
negligence
11UNREASONABLE INDEMNIFICATION PROVISIONS
- Any indemnification provision which would
have a sub indemnify the general for the
generals own negligence should be rewritten
and/or deleted - Whatever indemnity the sub is providing the
general, the general should provide a reciprocal
indemnity to the sub - The general should indemnify the sub for
anything arising out of the work or actions of
the general
12NO LIEN PROVISIONS
- Beware of provisions which would have a sub,
before performing any work, forever waive any
right to file or perfect a mechanics lien - Some states have statutes which expressly
state that such a provision is unenforceable.
Ohio does not - Therefore, if a sub encounters such a
provision, it should be deleted
13NO LIEN PROVISIONS
- Missouri statute (429.005) says such a
provision is against public policy and
unenforceable - Kansas statute (16-1803(b)(2)) says such a
provision is against public policy and is void
and unenforceable
14SCHEDULING PROVISIONS
- Beware of provisions which provide the
general with sole control over scheduling of
your work - If the subs work is much more costly to
perform in winter weather, then such provision
is even more dangerous -
15- Ideally, the schedule would be attached to the
agreement or otherwise agreed upon at the
beginning, and changes would not be made without
the subs consent or without the sub being able
to obtain extra compensation for delay or more
difficult performance
16NO DAMAGES FOR DELAY CLAUSES
- State that in the event of a delay in the
subs work, the sub will not be entitled to
extra compensation - but, perhaps, will be
entitled to an extension of time - Some states have a statute which provides
that such a no damage for delay clause is
unenforceable when the owner or general causes
the delay CAUTION! Can be enforceable for
other delays
17SUMMIT CONTRACTORS
- OSHRC Struck down multi-employer policy in
2008. - Eighth Circuit Reversed OSHRC and sent case
back to them 4/2009. - OSHRC Adopted Eighth Circuit decision 7/27/09
18- Contract language may be important
- Presence of general contractor on site may be
important - Understand your responsibility to the employees
of others on job site under your contract. - May be able to limit exposure through contract
language.
19OSHA FIELD OPERATIONS MANUAL (FOM)
- New manual effective 3/26/09.
- Some significant changes.
- State OSHA citation may NOT any longer be used as
the basis for a federal repeat. (Caution) - But, it may be used to document employer
knowledge to support a willful citation.
20FOM (continued)
- Employee complaint includes only present
employees, not past employees. - Complaint by telephone is treated as a non-formal
complaint until a signed copy of information is
received.
21FOM (continued)GENERAL DUTY CLAUSE
- Employer fails to keep workplace free from
hazard - Hazard was recognized
- Causing or likely to cause death or serious
physical harm and - Feasible and useful method available to correct
hazard. - Involved only cited employers employees.
22FOM (continued)GENERAL DUTY CLAUSE (continued)
- Recognition of hazard can be based on
- Employer recognition
- Industry recognition
- Common sense recognition
- Employer recognition
- Statements made by employer, management, or
supervisory personnel during or before inspection - E-mails
23PROTECTING AMERICAS WORKERS ACT
- H.R. 2067 Will amend OSHA to expand coverage,
increase protections for whistle blowers and to
increase penalties for certain violations. - 4/23/09 Introduced and referred to House
Committee on Education Labor.
24- H.R. 242 Directs SOL to revise regulations
concerning the recording and reporting of
injuries and illnesses. - 3/16/09 Referred to Subcommittee on Workforce
Protections.
25- H.R. 849 Directs SOL to issue interim and final
combustible dust standards. - 3/23/09 (same as H.R. 242)
26- H.R. 2199 Amend Act to authorize SOL to prevent
employee exposure to imminent danger. - 4/30/09 House Committee on Education Labor.
27IMMINENT DANGER ACT
- If inspector determines imminent danger, employer
must correct immediately (reasonably could cause
death or serious physical harm.) - (Could be just about anything.)
- Employer must take immediate action to remove all
exposed employees and correct.
28- Employer refuses to comply, inspector can shut
down job and remove employees. - Failure to comply additional civil penalty of
10,000 - 50,000 a day. - OSHA can obtain injunction in Federal District
Court.
29OSHA BUDGET PROPOSAL FY 2010
- 50.1 million over FY 2009 160 new CSHOs.
- Emphasis on enforcement and new regs, less on
VPP, alliances, and compliance assistance. - Increase in whistleblower and discrimination
investigators.
30PROTECTING AMERICAS WORKERS ACT
- Introduced in Senate on August 7, 2009
- Sponsor Ted Kennedy
- Similar to legislation introduced in House on
April 23, 2009 - S.B. 1580
31KEY COMPONENTS
- Increases whistleblower protection
- Redefines imminent danger refusal to work
- Employee has 180 days to file complaint
- Remedy injunctive relief, reinstatement,
compensatory damages, civil penalties
32- For reporting purposes a serious accident is one
in which two (2) or more employees are
hospitalized. - Victims rights
- Any employee who sustains an injury that is
subject of OSHA investigation or family of
deceased employee. - May
- meet with A.D. regarding inspection
33- receive a copy of citation
- before citation is modified in the case of a
serious incident or death appear before parties
and make a statement.
34- Employee rep may now file a notice within contest
period that citation fails to properly designate
violation as serious, willful, or repeated that
proposed penalty is not adequate or concerning
abatement period. - Affected employees may now challenge any
settlement agreement and may have a hearing on
challenge.
35PENALTIES - CIVIL
- Willful 8000 120,000
- Willful (death) 50,000 250,000
- Willful 25,000 250,000
- (death lt25 employees)
- Serious 0 12,000
- Serious (death) 20,000 50,000
- Serious 10,000 50,000
- (death lt25 employees)
36- Other than serious same as serious
- Failure to Abate up to 12,000/day
- Violation of posting
- requirement 0 - 12,000
37PENALTIES - CRIMINAL
- Willful (death) -- fines as set out for civil
penalties imprisonment up to 10 yrs. - Willful (serious injury) fines as set out for
civil penalties imprisonment up to 5 yrs. - Employer includes any responsible corporate
officer - Advance notice of inspection imprisonment up to
2 yrs.
38- False statements imprisonment up to 5 yrs.
- Serious bodily injury injury involving
substantial risk of death, protracted
unconsciousness, protracted and obvious physical
disfigurement, or protracted loss or impairment
of the function of a bodily member, organ, or
mental faculty.
39EMPLOYEE FREE CHOICE ACT
- Biggest change since 1935
- Current rule
- Submit signed cards for 30 of employees to
trigger secret ballot election - Good-faith bargaining between union and employer
- Employees vote to ratify CBA
40EMPLOYEE FREE CHOICE ACT
- New rule
- Submit signed cards for a majority of employees,
no secret ballot election - Secret ballot election still occurs if union
submits signed cards for between 30 and 50 of
employees - It is all about the Card
41EMPLOYEE FREE CHOICE ACTCURRENT STATUS
- S. 560
- 3/10/09 Read twice and referred to Committee
on Health, Education, Labor Pensions - H.R. 1409
- 3/10/09 Referred to House Committee on
Education Labor. - 4/29/09 Referred to Subcommittee on Health,
Employment, Labor Pensions.
42RESPECT ACT (Re-Empowerment of Skilled and
Professional Employees and Construction Trade
Workers Act)
- Current definition of supervisor in Section 2(11)
of NLRA an employee with authority to hire,
transfer, suspend, layoff, recall, promote,
discharge, assign, reward or discipline other
employees or to responsibly direct them or to
adjust their grievances or effectively to
recommend such action - New definition eliminates assigning and
responsibly directing and requires supervisors to
perform duties for a majority of work time
43RESPECT ACT
- Divides supervisor loyalty between company and
union - Unions will use non-supervisors under new
definition to collect union authorization cards - RESPECT shows union willingness to change any
rule - More union members more union money
- (Not yet introduced.)
44PATRIOT EMPLOYER ACT
- Tax credit if meet definition of Patriot Employer
1 of taxable income - Patriot Employer definition
- Maintain ratio of full-time workers in U.S. to
full-time workers outside U.S. - Maintain corporate headquarters in U.S.
- Pay hourly wages sufficient to keep a family of 3
out of poverty
45PATRIOT EMPLOYER ACT
- Patriot Employer definition (continued)
- Pay difference between an employees salary and
military salary and continue the health insurance
for all National Guard and Reserve employees
called for active duty - Pay 60 of each employees health care premiums
46- Provide employees with defined benefit retirement
plan or a defined contribution retirement plan
that matches 5 of employee contribution - Maintain neutrality in employee organizing
campaigns
47PATRIOT EMPLOYER ACT
- Definitions are vague
- Results in lower tax rate for large companies
willing to unionize - Neutrality union wins
48PATRIOT EMPLOYERS ACTCURRENT STATUS
- S. 829
- 4/20/09 Read twice and referred to Senate
Committee on Finance - H.R. 989
- 2/11/09 Referred to House Committee on Ways
Means
49FEDERAL HEALTHY FAMILIES ACT
- 7 paid sick days per year
- Time off for self, spouse, children, and parents
for medical and preventive healthcare - Small employers 15 employees
- Incremental leave time
- High curb appeal
- Obama supports and mentioned at Democratic
convention
50HEALTHY FAMILIES ACTCURRENT STATUS
- S. 1152
- 5/21/09 Read twice and referred to Committee
on Health, Education, Labor Pensions
51FAMILY AND MEDICAL LEAVE ACT
- Long awaited regulations
- Clarification provisions
- Employers can deny attendance bonuses
- Mandatory timely leave designation by employer
5 days instead of 2 - Clarify light duty does not exhaust FMLA leave
- Intermittent leave?
- New forms
52FAMILY AND MEDICAL LEAVE ACT
- Military families
- Any qualifying exigency
- Extended leave 26 weeks
53FAMILY AND MEDICAL LEAVE ACT
- Possible amendments
- Broaden coverage 25 employees
- Broaden coverage of family members i.e.
grandparents - LOA for eldercare and domestic violence
- 24 hours for school activities
54FMLA
- H.R. 2132 Permits leave to care for a same-sex
spouse, domestic partner, parent-in-law, adult
child, sibling, or grandparent with a serious
health condition. - 4/28/09 Referred to House Committee on
Education Labor, House Administrative, and
Oversight and Govt. Reform for a period to be
determined by the Speaker.
55- H.R. 824 Would allow employees to take
additional leave, parental involvement leave to
participate in or attend childrens and
grandchildrens educational and extracurricular
activities. - 5/4/09 Referred to House Subcommittee on
Federal Workforce, Post Office, and D.C.
56- H.R. 389 Eliminate hours of service
requirement. - 1/9/09 Referred to House Committee on
Education Labor, House Administrative, and
Oversight and Govt. Reform for a period to be
determined by the Speaker.
57- H.R. 262 To prevent hate crimes and to provide
support services to victims of hate crimes. - 3/16/09 Referred to Subcommittee on Workforce
Protections
58- H.R. 1723 To provide for a paid FMLA insurance
program. - 5/14/09 Referred to Subcommittee on Workforce
Protection. Reform for a period to be determined
by the Speaker.
59- H.R. 2339 To establish a program that supports
efforts of states to provide partial or full wage
replacement for new parents, so that they can
spend time with new infant or newly adopted
child. - 5/7/09 Referred to House Committee on
Education Labor.
60- H.R. 2515 to amend FMLA to allow leave to
address domestic violence, sexual assault, or
stalking and to include domestic partner under
the Act. - 5/20/09 Referred to House Committee on
Education Labor, House Administrative, and
Oversight and Govt. Reform for a period to be
determined by the Speaker.
61WORKING FAMILIES FLEXIBILITY ACT
- So-called union of one
- 15 or more employees
- Requires good faith negotiations with any
employee who desires a change in days of work,
hours or location - Multi-step procedure meetings, written
documentation, and reconsideration
62WORKING FAMILIES FLEXIBILITY ACT
- If deny, employer must provide reasons in writing
including - Costs in agreeing to change
- Effect of change on customer demand
- Overall financial resources involved
- Employee entitled to representative of choice
- Employee protected from retaliation
- Enforced by Dept. of Labor - penalty of 1,000 -
5,000
63WORKING FAMILIES FLEXIBILITY ACT
- H.R. 1274
- 3/3/09 Referred to House Committee on Education
Labor, House Administrative, and Oversight and
Govt. Reform for a period to be determined by the
Speaker. - 8/19/09 Referred to Subcommittee on Courts and
Competition Policy.
64FOREWARN ACT
- Amends Worker Adjustment Retraining
Notification Act for shut downs and mass layoffs - 90 day written notice of closure not 60
- 50 or more employees not 100
- Mass layoff redefined to 25 employees (not 50)
65FOREWARN ACT
- Doubles back pay penalties
- Difficulties foreseeing shut down
- Obama supports
66FOREWARN ACT
- 4/23/09 Referred to House Committee on
Education Labor.
67CIVIL RIGHTS ACT 2008EQUAL REMEDIES ACT
- Removes 500,000 damage caps for Title VII
- 15-100 employees 50k
- 101-200 employees 100k
- 201-500 employees 200k
- Punitives, pecuniary and non-pecuniary
- Adds compensatory and punitive damages to FLSA
back pay x 2 if willful
68CIVIL RIGHTS ACT 2008EQUAL REMEDIES ACT
- Co-sponsored by Obama
- Bars mandatory arbitration
- Permits NLRB to award back pay to undocumented
employees - Makes it easier for employees to recover expenses
of suits even if not prevailing party in all
respects
69CIVIL RIGHTS ACT 2008EQUAL REMEDIES ACT
- Amends Equal Pay Act to limit employer defense of
a bona fide non-discrimination factor - ADEA class actions allowed for unintentional
claims disparate impact - Hillary Clinton sponsored with Edward Kennedy in
previous session - Not yet introduced.
70FAIR PAY ACT
- Equal pay claims
- Extends statute of limitations
- Affected individuals could sue as well (including
estate and retirees) - Overturns Lilly Ledbetter v. Goodyear Supreme
Court - Difficult to defend stale claims
- Obama in favor
71- Not another Equal Pay Act
- Vote 247 to 171
- Signed into law 1/29/09
- Retroactive to 5/27/07
72ADA AMENDMENTS
- Amends Americans with Disabilities Act January 1,
2009 - Overrides Supreme Court decisions
- Definition of disability broadened
73ADA AMENDMENTS
- Impairments in remission or episodic if limits
major life activity when active, i.e. cancer - Mitigating measures (other than glasses) not
considered for impairment substantially limiting
major life activity i.e. hearing aids
74ADA AMENDMENTS
- Regarded as disabled provision broadened
- Major life activity expanded to include bodily
functions - DOL regulations to come
- Litigation explosion
75FLSA
- H.R. 12
- S. 182 Amend FLSA to provide more effective
remedies to victims of wage discrimination on
basis of sex. - 1/9/09 Placed on Senate Legislative Calendar.
76CONTEMPLATED, BUT NOT YET INTRODUCED
- Independent Contractor Proper Classification Act
- Employment Non-Discrimination Act
- Equal Remedies Act