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DUNLEVEY, MAHAN

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Title: DUNLEVEY, MAHAN


1
DUNLEVEY, MAHAN FURRYMIDWEST ROOFING
CONTRACTORS ASSOCIATIONOctober 2009
2
PROVISIONS 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

4
PROVISIONS 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

5
ASSUMING 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

6
PRIOR 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

8
UNREASONABLE 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

10
UNREASONABLE 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

11
UNREASONABLE 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

12
NO 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

13
NO 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

14
SCHEDULING 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

16
NO 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

17
SUMMIT 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.

19
OSHA 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.

20
FOM (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.

21
FOM (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.

22
FOM (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

23
PROTECTING 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.

27
IMMINENT 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.

29
OSHA 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.

30
PROTECTING 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

31
KEY 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.

35
PENALTIES - 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

37
PENALTIES - 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.

39
EMPLOYEE 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

40
EMPLOYEE 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

41
EMPLOYEE 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.

42
RESPECT 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

43
RESPECT 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.)

44
PATRIOT 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

45
PATRIOT 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

47
PATRIOT EMPLOYER ACT
  • Definitions are vague
  • Results in lower tax rate for large companies
    willing to unionize
  • Neutrality union wins

48
PATRIOT 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

49
FEDERAL 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

50
HEALTHY FAMILIES ACTCURRENT STATUS
  • S. 1152
  • 5/21/09 Read twice and referred to Committee
    on Health, Education, Labor Pensions

51
FAMILY 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

52
FAMILY AND MEDICAL LEAVE ACT
  • Military families
  • Any qualifying exigency
  • Extended leave 26 weeks

53
FAMILY 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

54
FMLA
  • 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.

61
WORKING 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

62
WORKING 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

63
WORKING 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.

64
FOREWARN 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)

65
FOREWARN ACT
  • Doubles back pay penalties
  • Difficulties foreseeing shut down
  • Obama supports

66
FOREWARN ACT
  • 4/23/09 Referred to House Committee on
    Education Labor.

67
CIVIL 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

68
CIVIL 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

69
CIVIL 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.

70
FAIR 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

72
ADA AMENDMENTS
  • Amends Americans with Disabilities Act January 1,
    2009
  • Overrides Supreme Court decisions
  • Definition of disability broadened

73
ADA 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

74
ADA AMENDMENTS
  • Regarded as disabled provision broadened
  • Major life activity expanded to include bodily
    functions
  • DOL regulations to come
  • Litigation explosion

75
FLSA
  • 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.

76
CONTEMPLATED, BUT NOT YET INTRODUCED
  • Independent Contractor Proper Classification Act
  • Employment Non-Discrimination Act
  • Equal Remedies Act
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