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SCREENING THE CONTRACTORS AND SUPPLIERS YOU USE

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CONTRACTOR TAKEOVER LEADS TO TORTIOUS INTERFERENCE WITH CONTRACT AND CONSPIRACY
CLAIMS

28 Oct, 2021
When a subcontractor is having trouble completing its subcontract work, it is
not uncommon for a contractor to assert itself more directly into the completion
process to help expedite the work. What’s the harm you might ask? A recent
Loudoun County, Virginia case answered that question: It could lead to tortious
interference with contract and conspiracy claims by the subcontractor. That case
was Evans Construction Services (the subcontractor) versus Ox Builders (the
contractor), and it also included a claim by the subcontractor against the
contractor’s site superintendent, Lawler, as a co-defendant in the case
individually. Evans alleged that Ox and Lawler tortuously interfered with Evan’s
subcontracts by dealing directly with the subcontractors and directing the
subcontractors’ work, cutting Evans out of the picture. Evans sought to recover
its lost profits. Ox and Lawler argued against liability because Evans’ claims
sought redress outside of Evans’ subcontracts with Ox and because Evans had no
contract with Lawler at all, moving to dismiss Evans’ lawsuit as a matter of
law. The court denied that motion, holding that the facts as pled by Evans were
legally sufficient if ultimately proven by Evans, to support a claim for breach
of legal duties separate from duties arising contractually only; and
specifically for wrongful interference with Evans’ subcontracts and Evans’
related conspiracy claim against the defendants. Although the court acknowledged
that Evans’ claims were interrelated with the Ox – Evans subcontracts underlying
the parties’ relationship, those common facts could support both contractual and
non-contractual breach claims in certain circumstances. The court further
determined that such circumstances, if ultimately proven, included Evans’ claims
that Ox and Lawler violated their independent common law duties to not interfere
with Evans’ lower tier subcontracts and not conspire together to injure Evans in
its business. The court, therefore, allowed Evans’ claims to proceed to trial on
their merits. The defendants apparently did not argue to dismiss the conspiracy
claim on the basis Lawler, as an employee of Ox, could not conspire with Ox, his
employer (referred to as the intercorporate immunity doctrine), or at least that
defense was not discussed in the court’s decision. But, regardless, this
decision reflects the necessity for caution “going around” subcontractors when
subcontract disputes arise. Author: Neil S. Lowenstein Source:
https://vanblacklaw.com/construction/contractor-takeover-leads-to-tortious-interference-with-contract-and-conspiracy-claims/



NEW SEX HARASSMENT LAW: MAKING FOR STRANGE BEDFELLOWS IN CONSTRUCTION INDUSTRY

21 Oct, 2021
In the construction industry, where multiple companies working closely together
abound and where it is more difficult to monitor employee behavior because many
employees are in the field, more incidents of inappropriate behavior occur.
Texas and California, two states opposite politically and in law making, have
instituted legislation expanding sex harassment protections for employees in the
workplace that go even further than federal protections. Indeed, both laws have
similarities. Texas and California Similarities In Texas , as of September 1,
2021, under expanded protections against sexual harassment, individuals in
management and companies that have even only one employee can be held liable. In
the construction industry, this expansion could sweep many subcontractors and
tradesmen under the new law. The new law will challenge the definition of who is
a manager. In California, under the 2019 law, an employer may be liable for acts
of nonemployees concerning any type of harassment (not just sex harassment)
against employees and other nonemployees working as interns or volunteers and
service contractors. In Texas, the new law increases the time limit to file a
sex harassment charge from 180 days to 300 days, making it consistent with
federal law. Similarly, in California, an employee has up to 10 years to file a
civil action for sexual assault or attempted sexual assault, or within three
years after an employee discovers an injury or illness as a result of the
assault or attempted assault, whichever is later. In Texas, instead of requiring
supervisors to “take prompt remedial measures,” individual liability will hang
on whether supervisors “knew or should have known” about the sex harassment in
the workplace. The new law also requires “immediate and appropriate corrective
action.” Certainly, the standard of “knew or should have known” will be
case-specific and fact-intensive, making it difficult to dismiss cases before
they reach trial. In California, recent amendments to the Fair Employment and
Housing Act have made it easier for employees to prevail in sex harassment
actions. They also lowered the employee’s burden and standard of proof. 
Implications What does this mean for employers of all sizes? More frequent
training, updating sex harassment policies and employee handbooks, expansion of
human resources departments to respond more quickly to complaints, and a closer
evaluation of what constitutes a managerial position are required. In
California, recent legislation requires training for even the smallest of
employers (a minimum of five employees). As of January 2020, California imposed
minimum time requirements for the length of such training for supervisors and
other employees. To be sure, in the multi-employer setting, companies also may
need to verify that other companies they work alongside have sex harassment
policies, that they conduct periodic training, and that their employee handbooks
have been updated to comply with the law. Author: Victor N. Corpuz Source:
https://www.jacksonlewis.com/publication/new-sex-harassment-laws-making-strange-bedfellows-construction-industry



DURING AN OSHA INSPECTION: KNOW YOUR RIGHTS

13 Oct, 2021
During an Occupational Safety and Health Administration (OSHA) inspection, the
OSHA official, escorted by management, will tour the facility or construction
site to observe working conditions, identify violations, and so on.

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