Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law
Here at Construction Law Musings, I’ve discussed the need to keep up with your safety program and stay out of the cross-hairs of the state and federal safety inspectors.
The Virginia Court of Appeals gave a stark reminder of this fact in the case of Atlantic Environmental Construction Co. v. Malveaux, Comm’r. In this case, Atlantic Environmental had some roofers under their supervision working around a skylight at the Chrysler Museum in Norfolk, VA. Unfortunately, these roofers were not using proper guardrails or fall arrest system and the skylights was not covered when the inspector decided to visit the job site. Needless to say, the VOSHA inspector cited Atlantic Environmental for a “Serious” violation.
Dominion Transmission Inc. v. Precision Pipeline Inc. involved the construction of portions of the “Appalachian Gateway” pipelines. As often happens on large projects like this, the contractor, in this case Precision Pipeline, presented the utility, Dominion Transmission, Inc. a large change order for payment (approximately $56 million). When these changes were not paid and the project closeout negotiations went nowhere, Precision did what any good contractor would do: it filed mechanic’s liens in Pennsylvania and West Virginia. Unsurprisingly, litigation ensued in Richmond, VA pursuant to a forum selection clause in the contract.
We’ve discussed the Lead Paint RRP requirements in the past here at Construction Law Musings. Since its passage almost a year ago, there has been a lot of debate about its necessity and cost. While this debate is interesting, I recommend a Google search on this topic for you to get all angles. I’ll be discussing the potential legal ramifications of a possible change to the RRP in this post.
An OSHA (Occupational Safety and Health Administration) or VOSH (the Virginia equivalent) inspection can be stressful. Knowing what to do during an inspection can go a long way to relieving this stress.
Check out this SlideShare Presentation regarding a contractor’s rights when the Safety Inspector shows up at a job site. This is the PowerPoint from a presentation I have done several times around the Commonwealth of Virginia. The presentation goes well with my VOSH Inspection Checklist.
For this week’s Guest Post Friday here at Construction Law Musings, we welcome Josh Johnson. Josh is a friend and a litigation attorney at Gentry Locke Rakes & Moore, LLP in Roanoke, Virginia. He practices in several areas, including construction law. Josh graduated from the University of Virginia School of Law in 2005, and he has been associated with Gentry Locke since 2007. Josh has represented large and small businesses in OSHA matters in various locations in the Commonwealth, and he has represented owners, contractors, subcontractors, sureties, architects and engineers in all manner of construction litigation.
OSHA remains on the front lines of the political debate between pro-workplace safety advocates and pro-business advocates. Under the Obama administration, OSHA has received more prominence and financial support than under previous administrations. As of last Fall, OSHA’s penalty framework was revised to increase penalties. OSHA and its supporters argue that these changes were necessary to enforce compliance and to encourage worker safety; they also argue that the old penalty framework was outdated. OSHA’s detractors argue that the increased penalties and enforcement threaten jobs and hurt businesses in an already tough economy.
In February 2009, the Obama administration presented its budget blueprint, and it sought to increase funding for OSHA, “enabling it to vigorously enforce workplace safety laws.”
In 2010, OSHA indicated that it would be taking steps to create adequate incentives to increase compliance with OSHA’s requirements. OSHA determined that the best way to do so would be through higher penalties and more aggressive, targeted enforcement.
Then, effective October 1, 2010, OSHA made several changes to its penalty calculation system. According to OSHA, these monetary penalties had only been increased once in the last 40 years and those increases occurred back in 1990.
The OSHA penalty calculation system is an interesting and logical computation. When OSHA discovers a violation, it initially cites the employer with a penalty that could be decreased if the employer meets certain criteria. These criteria can have a large impact on the amount of the penalty. In the past, OSHA generally (with some notable exceptions) reduced penalties based on the following criteria:
