Legislation

Subscribe to Legislation

In 2017, the California Legislature passed a bill that resulted in Business and Professions Code (BPC) section 7169, which ultimately would require Home Improvement Contractors, which include contractors that install solar systems on residences, to issue specific disclosures to any residential consumers who may want to purchase, finance or lease, and install a solar system on their property. Recently in August, the California Public Utilities Commission “endorse[d] the solar energy systems disclosure document as being compliant with [BPC section 7169]….” The Disclosure terms include:

  • The total cost for the solar system, including financing and energy/power costs (if applicable);
  • The statutory License Board Disclosure statement for contractors and / or the home improvement salesperson who sold the system information regarding with whom to file if there are complaints; and
  • The statutory Three-Day Right to Cancel Disclosure if the contract is not negotiated at the contractor’s place of business.

After decades of dealing with a hodgepodge of local adoption (or not) of administrative codes relating to building permit extensions, California Governor Brown’s September 21, 2018 signature on AB 2913 is a welcome addition of at least six months to the existing statutory commencement of work period. AB 2913 allows a uniform 12-month period across…

A recent legislative amendment to the Washington Contractor Registration Act (the “CRA”) underscores  the need for residential property developers to assess whether the development activities they perform on their Washington projects constitute those of a “contractor” and thus require registration with the Department of Labor and Industries. On April 22, 2015, Washington Governor Jay Inslee…

Those that “dig in the dirt” are very familiar with the Damage Information Reporting Tool (DIRT), which was launched in 2003 by the Common Ground Alliance (CGA). Over the years California has enacted several statutes requiring anyone moving dirt to notify a regional notification center of the area of planned disturbance that may impact a subsurface…

You may have recently heard that on December 11, 2013, the California Supreme Court denied the builder’s Petition for Review of the published decision in Liberty Mutual Insurance Co. v. Brookfield Crystal Cove LLC, 163 Cal. Rptr. 3d 600, Cal. App. 4th 98 (2013). For builders and contractors, this is very frustrating news and undermines…

Oregon Senate Bill 254A and the CMGC method generally garner more attention than is justified. Here is the background.

On a typical non-CMGC project, the general contractor will bid on a complete or nearly complete set of design documents. This is referred to as “design-bid-build.” In public construction, competitive bidding is required by statute to reduce expenditure of taxpayer funds. In the CMGC method, rather than awaiting a complete design, the contractor is chosen early and asked to (1) review the developing design of the architects and engineers, and (2) perform certain other planning and organizational work that theoretically benefits the project. The “early” work is generally considered the “CM” portion of the CMGC scope, while the post-bid or post-GMP (guaranteed maximum price) work is generally considered the “GC” portion.

What is so different about this process? Not much, really, but there are a couple of considerations that differ from traditional design-bid-build. First, because the CMGC is chosen before design is complete, the CMGC is not able to provide concrete pricing at the time it is selected; by the time the design is sufficiently complete to allow pricing, the CMGC has already been chosen. Critics argue (accurately) that this dynamic puts more leverage in the hands of the CMGC during price negotiations because the owner has now invested time and CM dollars in the CMGC and probably does not want to manage a second-round selection process to get a new contractor if the original CMGC’s price is not competitive. While this poses a theoretical problem for owners, the CMGC provides its percentage fee (markup) at the time of selection and is required to competitively bid all subcontractor work, reducing if not eliminating the concerns over cost control and negotiating leverage.

Following the market crash in 2008-09, the $2.8 billion Fontainebleau development in Las Vegas was halted with 70 percent of the construction completed. Naturally, numerous mechanic’s liens were filed by contractors, subcontractors, professionals and suppliers ("claimants"). In the bankruptcy proceeding, the lenders asserted novel and potentially legally destabilizing theories against the claimants’ rights: a.) the…

OSHA compliance recently became harder and costlier, and may continue to do so, thanks to several developments at the federal and state level. (Click here for a prior post on OSHA reform.)

You may go to prison if you discipline or terminate an employee who might be worried about an unsafe working condition—even though your employee had not bothered to tell you about his concern. That is what the current version of the Robert C. Byrd Miner Safety and Health Act of 2010 (H.R. 5663) provides.

The Byrd Act, not yet law, would prohibit firing or discriminating against an employee who refuses to perform the his duties if he “has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee or other employees.” Employers should wonder how they will know whether their employees have “reasonable apprehensions”—the Act does not require the employee to voice his apprehension for this provision to protect him from discrimination for failing to do his work. If the Act becomes law, an employer who fires an employee because that employee is not performing may find itself faced with a complaint.

The Byrd Act has not moved since July 29, 2010, when it was placed on the Union Calendar. Depending on the results of the recent elections, it may not move at all.

If your business has an effective noise protection program in place, that may not protect you from OSHA penalties.

The U.S. Occupational Safety and Health Administration recently proposed adopting a new interpretation of the word “feasible” as it is used in certain sections of the General Industry and Construction Occupational Noise Exposure standards (sections 1910.95(b)(1) and 1926.52(b)).

Feasible, which currently means that a measure is both capable of being done and that the costs of implementing the measure are less than the cost of an effective hearing conservation program, would only mean capable of being done. If you have avoided certain measures because they were not economically feasible, and if OSHA determines that they were capable of being done, your program will not be in compliance.

For example, if your employees are exposed to a loud workplace but you require them to wear effective ear protection—and they do—this will not be good enough. If OSHA decides that redesigning your workplace with expensive sound-absorbing baffles is capable of being done, you have to do it. Even if it would be no more effective than your current program.

Instead of allowing a cost-benefit analysis, the Administration would consider administrative or engineering controls economically feasible when the cost of implementing those controls will “not threaten the employer’s ability to remain in business.” So, if OSHA decides those sound-absorbing baffles won’t threaten your ability to remain in business, they are economically feasible. Oddly, though the Administration argues that its proposal restores the “plain meaning” of feasible to its enforcement policies by eliminating cost-benefit analyses, it did not state how it derived its proposed economic viability standard from that plain meaning.

Contributor:  Louis A. Ferreira

Congress has proposed legislation that would amend the Occupational Safety and Health Act of 1970 to increase both civil and criminal penalties, expand coverage, and create new obligations for employers. Congress has not acted recently on the bill, named the “Protecting America’s Workers Act," but employers should expect action sometime in the new year.

 

Willful violations of OSHA that result in the death of a worker would be a felony punishable by up to 10 years in prison, while willful violations resulting in serious bodily injury would be a felony punishable by up to five years in prison. Currently, the criminal penalty for a willful violations resulting in death is imprisonment for 1 year. There is no criminal penalty under the existing act for a serious bodily injury resulting from a willful violation. In addition, the maximum civil penalties in all OSHA violation categories would increase, and would be adjusted periodically according to the Consumer Price Index.

 

Oregon-OSHA administers its own regulations for most employers in the state but adopts standards and penalties at least as stringent as federal OSHA. In other words, if federal OSHA standards are changed, these impacts will be enforced in Oregon in short order. Employers should be concerned about the scope of these changes because like most legislation, the devil is in the details of how the law is changed. For instance, a willful violation of an OSHA standard does not necessarily require an intentional decision to violate the regulation. A willful violation is defined to exist where an employer or supervisor “recklessly” disregards the requirements of a regulation. Knowledge of the regulation is usually not required it the employer or supervisor should have known of the regulation or standard. 

 

Additionally, employers would be prohibited from

 

  • adopting or implementing policies or practices that discourage reporting work-related injuries or illnesses, or that discriminate or provide adverse action against any employee reporting such injury or illness; and
  • reducing wages or employee benefits while employees participate in or aid workplace inspections