Last July, a 13 story building in Miami Beach that undergoing a demolition suddenly fell, amid odd circumstances, and flying debris fatally injured one of the contractor’s project managers. Now, the family of the man killed is filing lawsuits against all parties involved with the demolition, calling it “illegal” and “reckless.”Read More
Construction is hard work and those working hard for your company should be paid in full and on-time for all hours worked. Cash flow can certainly complicate things for contractors, as pay draws can be delayed for various reasons, but cheating workers out of money is not only unscrupulous, but is gaining attention from government agencies.Read More
Even though OSHA recently eliminated the need for employers to electronically submit OSHA Forms 300 and 301, citing privacy concerns, companies are still responsible for submitting OSHA Form 300A – and the deadline is fast approaching.Read More
Multi-employer worksites are extremely common in the construction industry, but they can still make work extremely complicated. One of those complications results when a subcontractor receives a governmental violation, such as an OSHA violation. As a controlling employer on the site, can a general contractor be held responsible for safety hazards of a subcontractor? One court says yes.Read More
Be careful - owners and contractors are now being held criminally liable for their carelessness and disregard of safety protocols.Read More
Last November, Manhattan District Attorney Cyrus R. Vance Jr. announced felonious assault charges against a contractor’s superintendent and a manufacturer’s branch manager after two men suffered horrific injuries on a New York jobsite. Last week, OSHA formally announced citations against the St. Louis, Missouri based contractor.Read More
Manhattan District Attorney Cyrus R Vance Jr strikes again on his hard stance against corruption and safety negligence in the construction industry. A Few weeks ago, he announced assault charges against a superintendent and a manager after 2 construction workers were seriously injured on a jobsite. In 2016, he successfully convicted a construction foreman of criminally negligent homicide and reckless endangerment after a laborer was killed in a trench collapse that he was overseeing. Just last week, Vance announced charges against formers Turner Construction and Bloomberg LP executives in a $15M bid-rigging and commercial bribery conspiracy.Read More
In September of 2017, OSHA’s new standard on exposure to respirable crystalline silica went into effect in the construction industry. The rule lowered the allowable exposure to the harmful substance to 50 micrograms per cubic meter, a measurement that we’re all familiar with [/sarcasm]. After a full year of enforcement, OSHA is considering making a change to the rule.Read More
A 2016 OSHA final rule that requires construction companies to submit electronic injury and illness data on a yearly basis has been fraught with controversy since its release. Over the summer, OSHA proposed rollbacks on additional requirements that large companies with 250 or more employees had to follow after industry pushback. Most recently, the administration has clarified their position on post-incident drug testing and workplace incentive programs, which many organizations believed was unclear under the final rule.
In the original final rule, found in 29 C.F.R. § 1904.35, OSHA deemed that certain post-incident drug testing and workplace safety incentive programs could end up being unlawfully retaliatory against their employees. The belief was that, if done the incorrect way, those policies could end up discouraging incidents from being reported due to an employee’s fear of punishment.
Industry groups, including ABC, have long fought against that line of thinking, explaining that, without proper clarification from OSHA, the rule could make jobsites much less safe. On October 11, OSHA issued an official memorandum which explains that the Department does not prohibit workplace safety incentive programs or post-incident drug testing.
Per the memorandum, “The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
With regards to safety based incentive programs, OSHA states that incentive program rewards for reporting hazards and near misses is always permissible. For incident rate based incentive programs which award a prize or bonus at the end of the time frame, the employer has to create an environment that does not discourage employees from reporting incidents. The Department offered suggestions for counterbalancing any negative effects a rate based incentive could cause:
an incentive program that rewards employees for identifying unsafe conditions in the workplace;
a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.
OSHA also mentions that most instances of drug testing are permissible under 1904.35(b)(1)(iv), including:
Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
Three common construction contract provisions—hold harmless, indemnification, and duty to defend—are often found together taking a form something like this:Read More