Among the many effects on the U.S. economy of the COVID-19 pandemic, construction projects that started before it began but were halted in its aftermath may be slow to resume or be abandoned altogether thanks to funding issues. Contractors, subcontractors, and suppliers feel immense pressure to protect and preserve their rights to payment for work
California Passes Bills Expanding Rights to Both Paid and Unpaid Leave
California Assembly Bill 1867 (signed by California Governor Gavin Newsom on September 9, 2020) and Senate Bill 1383 (signed on September 17, 2020) significantly expand the rights of California employees to both paid and unpaid leave. In addition, and especially as they relate to Senate Bill 1383, these laws will require California employers to promptly revise their policies and procedures when it comes to reviewing employee requests for unpaid leave.
Assembly Bill 1867
To recap, the Families First Coronavirus Response Act (“FFCRA”) provides that employees are entitled to up to 80 hours of paid sick leave for reasons related to COVID-19. FFCRA, however, applies only to employers with fewer than 500 employees. Like many ordinances adopted after the passage of FFCRA, AB 1867 attempts to fill the gap left by FFCRA by applying to employers with 500 or more employees.
AB 1867 fills this gap in two ways. First, it creates new California Labor Code section 248, which mirrors Governor Gavin Newsom’s prior Executive Order N-51-20. Section 248 requires entities with 500 or more employees to provide their “food sector workers” with up to 80 hours of “COVID-19 food sector supplemental paid sick leave.” Second, it also creates new Labor Code section 248.1. This section applies more broadly than section 248 as it requires that employers with 500 or more employees provide all employees with up to 80 hours of “COVID-19 supplemental paid sick leave.”
Disgorgement Liability in CA for Unlicensed Contractors Runs One Year from Completion or Cessation
In a very recently published case dealing with issues of first impression in California, here, the Second Appellate District in Los Angeles determined that the disgorgement penalty under BPC 7031(b) triggers a one-year statute of limitations given that it is a penalty, and the cause of action accrues from either the completion or cessation
Construction Alert: Washington Court of Appeals’ Conway Opinion Provides New Guidance Regarding a Right to Cure, a Set-Off, and Recovery of Attorney Fees
In Conway Construction Company v. City of Puyallup, No. 80649-1-1 (May 4, 2020), the Washington Court of Appeals, Division 1, adopted Oregon’s Shelter Products, Inc. v. Steelwood Construction, Inc., precluding certain claims for defects in termination cases and limiting the justification for termination to those listed in the termination notice. It also held that Washington’s settlement statute protecting public owners, RCW 39.04.240, trumps an attorney fee provision in a contract.
In Conway, the City of Puyallup (“City”) contracted with Conway Construction Company (“Conway”) to construct certain roadway improvements. During the project, the City became concerned about construction defects. The City issued notices to Conway expressing its concerns. The City also observed unsafe work conditions and reported the safety violations to the Washington State Department of Labor & Industries. After issuing a series of notices, the City terminated Conway because of its defective work and safety violations.
Can (or Should) My Project Continue During the Shutdown?
Several weeks have passed since Governor Brown formally ordered all Oregonians to “Stay Home, Save Lives,” and owners, project designers, and contractors have all had the opportunity to absorb its initial impacts. While many stakeholders were initially relieved that construction projects in Oregon could apparently continue—subject to the various social distancing and travel restrictions described
Construction-Related Activity Restrictions in Select States
State and local officials across the country have responded to COVID-19 with various executive orders and restrictions on businesses to help flatten the curve of the pandemic. Each state’s response opens the door for potential impacts on projects commencing or under construction, and on the parties involved with those projects.
To assist clients and friends,
Differing Site Conditions An Issue in the Seattle SR 99 Tunnel Litigation
In late 2019, the Washington State Department of Transportation and Seattle Tunnel Partners (STP) engaged in a nine-week trial of claims arising from construction of the new State Route 99 tunnel under downtown Seattle. One major issue for the jury was whether STP had encountered “differing site conditions” – unknown underground conditions that differ materially
COVID-19 Alert – Governor Jay Inslee Extends Stay at Home, Stay Healthy Proclamation Through May 4, 2020 and Delays Implementation of New State Building Code
On March 23, 2020, Governor Jay Inslee issued the Stay Home, Stay Healthy Proclamation (20‑25) in response to the COVID-19 pandemic. Originally, the Proclamation was to be in effect through April 8, 2020. Despite Washington’s aggressive efforts to flatten the curve, on April 2, 2020, Governor Inslee announced his decision to extend the Proclamation through
Construction Work Under COVID-19 Orders in Utah
Unlike many of its neighboring states, Utah currently has no statewide “stay home” or “shelter in place” order. However, in response to COVID-19, Governor Gary Herbert has issued a “Stay Safe, Stay Home” directive on March 27, 2020. This is not a shelter in place order. It is a directive that tells individuals and businesses
Guidance for Owners and Contractors with Construction Projects in Oregon in Light of the Statewide “Stay Home” Order
On March 23, 2020, Oregon Governor Kate Brown issued Executive Order No. 20-12 directing Oregonians to “Stay Home, Save Lives.”
Unlike “stay home” orders in some other states—which prohibit the operation of all business unless specifically exempted—the Oregon Order prohibits the operation of specific categories of businesses identified in the Order (e.g., amusement parks, aquariums, etc.). Presumably, this means that if a category of business is not identified, then it is not subject to the prohibition.
Because “construction” is not specifically identified as a prohibited business, it is reasonable for owners and contractors to presume that their projects in Oregon may continue for the time being. While not explicitly part of the Oregon Order, some are characterizing it as “permission by omission,” meaning that the omission of a business on the prohibited business list means you have permission to operate that business. But proceeding under that assumption is not entirely without risk, and there are other important considerations for both owners and contractors to bear in mind, including: