Recent Blog Posts

OSHA Severe Violation Enforcement Program

David J. Canfield — Fri, 17 Dec 2010 03:30:00 GMT

Occupational Safety and Health Administration (OSHA) Severe Violator Enforcement Program (SVEP) replaces OSHA's Enhanced Enforcement Program (EEP). Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's function is to assure these conditions for the working population of the country by setting and enforcing standards, and providing training, education and assistance.

SVEP is intended to focus OSHA enforcement resources on obstinate employers that endanger workers by demonstrating indifference to their responsibilities under the law by committing willful, repeated or failure-to-abate violations in one or more of the following circumstances: a fatality or catastrophe; industry operations or processes that expose workers to severe occupational hazards; employee exposure to hazards related to the potential releases of highly hazardous chemicals; and all egregious enforcement actions.

SVEP targets high-emphasis hazards, which are defined as high gravity serious violations of specific fall standards (23 such standards are listed in general industry, construction, shipyards, marine terminal, and long shoring) or standards covered in National Emphasis Programs focused on amputations, combustible dusts, crystalline silica, lead, excavation/trenching, ship breaking, and process safety management.

The SVEP inspection procedures laid out by OSHA to compliance personnel say a follow-up inspection must be conducted after the citations become final orders in these cases to determine whether the violations were abated or the employer is committing similar violations. "When there are reasonable grounds to believe that compliance problems identified in the initial inspection may be indicative of a broader pattern of non-compliance, OSHA will inspect related sites of the same employer," the instruction states. There will be a SVEP Nationwide inspection list in such cases, with all sites inspected if there are 10 or fewer and sites chosen randomly if there are more.

A repeat violation will be issued when an employer previously has been cited for the same or a similar violation of a standard, regulation, rule or order at any other facility in federal enforcement states within the last five years. When there are a number of repeat violations cited, a company will be added to the Severe Violator Enforcement Program.

Sources:

http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=18714

http://www.osha.gov/dep/svep-directive.pdf

http://ohsonline.com/articles/2010/04/22/severe-violator-enforcement-program.aspx

Business of Law - Managing Legal Fees

David J. Canfield — Thu, 16 Dec 2010 03:50:00 GMT

As a lawyer who tries to keep the client instead of the case, I have thought a lot about the best way to manage litigations on behalf of my clients. The issue is that a lawyer wants to dive into a case, organize the file, understand the issues, and to develop a strategy, all for the best interest of the client.

However, here is the rub ... more than most disputes, construction litigations are often extremely paper intensive, almost always involve multiple issues, and invariably result in claims being asserted by all sides to the dispute. The consequence is that initial preparation of the file eats hours like M&Ms, costing the clients not insignificant amounts before the lawyer is even competent to feel out the potential for settlement. In those cases where settlement is quickly reached, those efforts (and fees) seem wasted and unnecessary.

Example: I recently had a case involving complex construction issues. Opposing law firm was a large Manhattan firm; from our first meeting, the assigned attorney was as talented, smart and prepared as any adversary I have come across in my eighteen years of practice. This attorney knew the technical aspects of this construction project better than either my client or his own, and clearly better than I initially did. However, to get to that point, this attorney clearly had spent literally hundreds of billable hours in study, all at a billing rate clearly around $400 per hour. Is the client's best interest served by level of study? Ultimately, my client prevailed through motion practice in which I successfully raised issues of law, with explanations of underlying construction issues laid out by my client, and we achieved this while incurring legal fees totaling a fraction of my adversary's bills. Which is the better approach?

My firm always does its best to be aware of our clients' expenses, and to manage our time as efficiently as possible. Call me to discuss a plan specifically addressed to your case.

Construction Industry Fair Play Act

David J. Canfield — Wed, 15 Dec 2010 03:35:00 GMT

New York recently enacted the "New York State Construction Industry Fair Play Act" which took effect on October 26, 2010. The law is enacted to address the problem of employee misclassification. Under this law a construction worker is presumed to be an employee as opposed to an independent contractor.

The worker may be considered an independent contractor only if the worker is a separate business entity, as defined by the law, or the worker: (1) is free from control and direction in performing the job, both under his or her contract and in fact; (2) the service performed is outside the usual course of business; and (3) the worker is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue. The use of the phrase "and" requires that all three points of the test be met for contractor classification. As a result, the term employee gets a very broad definition.

The above test is commonly referred to as the "ABC" test for independent contractor status. It is used by various state agencies to define who is excluded from employee status for purposes of workers compensation or unemployment benefits or the like.

Penalties are laid out in the Act for paying off-the-books or misclassification of a worker. Those employers who willfully violate the law are subject to civil penalties of up to $2,500 for the first violation and up to $5,000 for each subsequent violation within a five year period. This penalty may be assessed for each worker who is misclassified. Additionally, employers who violate the law may be guilty of a criminal misdemeanor, and subject to imprisonment for up to 30 days or a fine up to $25,000 for the first offense, or imprisonment for up to 60 days or a fine up to $50,000 for a subsequent offense. If the employer is a corporation, any officer or shareholder who owns or controls 10% or more of the corporation and who knowingly allows a violation of the law, may also be subject to civil and/or criminal liability.

The new law also prohibits retaliation and has a provision which requires a notice posting. The New York State Department of Labor (NYSDOL) has issued the mandatory poster required to be displayed by covered employers.

New York construction industry employers must examine whether they are covered by the Act and how the Act's definition of "independent contractor" impacts their classification of workers. If they are covered they have to do the immediate posting of the NYSDOL poster.

Sources:

http://www.wageandhourlawupdate.com/2010/10/articles/states/new-york-state/new-york-construction-industry-misclassification-law-takes-effect-provisions-include-required-posting/

http://www.wageandhourcounsel.com/2010/09/articles/independent-contractor-issues/new-york-enacts-construction-industry-fair-play-act-to-address-employee-misclassification/

http://www.labor.ny.gov/sites/legal/laws/pdf_word_docs/Fair%20Play%20Act%20revision.pdf

First Blog

Canfield, Madden & Ruggiero, LLP — Mon, 13 Dec 2010 20:25:00 GMT

Welcome to visitors of this site! You are the readers of this, my first blog post on our law firm's website. I hope to provide some information relevant and interesting to our construction company clients and friends, and will discuss issues such as important construction contract clauses, best practices when faced with breach of contracts, available remedies for the unpaid contractor (mechanic's liens, payment bond claims, mediation, arbitration and litigation!). I hope we bring something of value to you. Dave.