Construction Law Blog
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Make the following inquiry of your constructional lawyer, watch him/her sit up in his/her chair and give your question immediate attention: “I haven’t been paid, can I walk off the job?” The answer to this question is a strong “maybe, but it’s risky.” Walking off the project has a significant downside. The risk is that the judge who reviews your decision, sometimes years after the event, may not agree that the non-payment was a material breach and, thus, suspension of performance (walking off) is not justified.
Companies that do not themselves qualify for federal preferences as small, disadvantaged businesses can help in joint ventures with other qualified companies and enjoy many of the benefits these programs offer.
Federal agencies annually reserve over $12 billion in federal contracting opportunities for award to “8(a)” companies, which are businesses that have successfully applied for determination of being socially and economically disadvantaged under Section 8(a) of the Small Business Administration (“SBA”) Act. In addition, other categories of disadvantaged, small businesses, such as companies owned and controlled by service-disabled veterans, qualify for a growing allotment of set aside contracts and other preferences.
The Job is Substantially Complete, the Subcontract was Never Signed, the Subcontractor Wants to be Paid—Now What?
A recent case in North Carolina illustrates the types of problems created when a general contractor accepts a subcontractor’s bid and then allows the subcontractor to perform the work without obtaining a signed subcontract. In this case, the general contractor (Choate Construction Company – “Choate”) accepted a bid from a foundation subcontractor (Southeast Caissons, LLC – “SEC”). Choate sent the subcontract to SEC. SEC provided its changes in a “Proposed Addendum” to the subcontract stating, “[SEC] hereby accepts the terms of the attached Subcontract, subject to and conditioned upon Choate[’s] acceptance of the terms set forth in this Addendum[.]” After that, Choate called SEC and exchanged emails concerning the subcontract terms, but did not reach an agreement. SEC then performed its subcontract and sought payment, and acknowledged it had not signed the subcontract. Choate agreed it owed SEC something, but refused to pay because SEC did not have a signed subcontract, asserting the subcontract was not binding on Choate.
Neighbor Allowed to Remove Tree Roots on Her Property That Supported Adjoining Landowners’ Two Large Trees With Legal Immunity
A recent Washington Court of Appeals opinion addressed the rights of a neighbor to destroy roots and branches on her property that belonged to trees located on an adjoining landowner’s property.
 Mustoe v. Ma, 193 Wn. App. 161, 371 P.3d 544 (Div. 1, April 4, 2016).
Ahlers & Cressman PLLC attorneys have again been recognized as “Super Lawyers” and “Rising Stars” (attorneys under 40 years of age, or practicing under 10 years) in Washington for 2016.
Six Ahlers & Cressman attorneys were recognized as Super Lawyers: John P. Ahlers, Paul R. Cressman, Jr., Scott R. Sleight, Bruce A. Cohen, Lawrence S. Glosser, and Brett M. Hill. Additionally, three of the firm’s attorneys have been recognized as Rising Stars: Ryan W. Sternoff, James R. Lynch, and Lindsay K. Taft.
On May 18, 2016, the U.S. Department of Labor (“DOL”) announced the new federal overtime rule under the Fair Labor Standards Act (“FLSA”). As a result of the new rule, over 4,000,000 workers will become entitled to overtime pay when they work extra hours. The rule becomes effective December 1, 2016.
The rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative, and Professional workers to be exempt, and changes the salary level that must be met before an employee can be exempt from overtime. The new minimum salary threshold will increase to $913 per week, $47,476 annually, and will apply to nearly all employees — an employee paid less than this threshold amount will be guaranteed overtime pay. The new federal threshold of $47,476 annually is more than double the current threshold of $23,660 annually ($455 a week), which has been in place since 2004.
The U.S. Equal Employment Opportunity Commission (the “EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.
James R. Lynch, one of the attorneys at the law firm of Ahlers & Cressman PLLC, has been appointed to the Washington State Capital Project Review Committee (PRC). Created by the legislature in 2007, the PRC is responsible for reviewing and approving all public projects in the State of Washington using the General Contractor/Construction Manager (GC/CM) and Design-Build (D-B) delivery methods of construction. The PRC also certifies certain qualified government bodies to use these methods more broadly. The PRC consists of key representatives of Washington public project owners, designers, general contractors, specialty/subcontractors, construction managers, construction trades labor, and minority/women businesses. James has been appointed to the PRC’s Private Sector seat for a three-year term.
On May 3, 2016, the Washington State Court of Appeals affirmed a jury’s verdict in favor of a condominium HOA against a structural engineer for $1,149,332 in damages.
The project in question was The Pointe, an upscale condominium building in Westport, Washington. The developer was Dodson-Duus, LLC. The architect was Elkins Architects (“Elkins”). The structural engineer was Engineers Northwest, Inc. (“ENW”). ENW contracted with Elkins for the structural engineering work.
When issuing citations under the Washington Industrial Safety and Health Act of 1973 (“WISHA”), the Department of Labor and Industries (“L&I”) commonly classifies violations as either “general” or “serious.” The level of severity has an effect on the civil penalty – for example, the civil penalty of “serious” violation can reach $7,000 per violation – as well as the contractor’s safety record. Contractors with poor safety records may pay more for insurance and have a more difficult time procuring work.