In IRS Provides Additional Guidance on Treatment of Same-Sex Marriages under Benefit Plans, Pillsbury partner Peter Hunt and senior law clerk Benjamin Asch discuss the IRS’s guidance in IRS 2015-86, in which provides guidance to sponsors and 
administrators of employee benefit plans regarding the application of the U.S. Supreme Court’s decision in Obergefell v. Hodges to plan participants with same-sex spouses.
Photo: Steve Snodgrass March 3, 2012 – Creative Commons
In their alert “Reverse CEQA” Reversed, California Supreme Court Rejects CEQA Analysis of Impacts of the Environment on the Project, Pillsbury attorney David Farabee discusses the California Supreme Court’s recent rejection of a requirement of so-called “reverse CEQA” analysis, concluding that “CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents.” The case is California Building Industry Association v. Bay Area Air Quality Management District, Case No. S213478 (December 17, 2015).
Public and private contractors take note of new law in Nevada that limits retainage for both public and private works contracts to five percent. Previously, for public works contracts, a public body undertaking a public work was permitted to withhold as a retainage at least five percent from progress payments made to a contractor during the first half of the project and, after completion of half of the project, the amount of the retainage became optional. Under amended Section 338.515(1) of the Nevada Revised Statutes (NRS), five percent must be withheld as retainage until 50 percent of the work required by the contract has been performed. In contrast to public works projects,
In New Legislation Threatens to Further Erode Market Share of Non-Trade Union Contractors in California, Pillsbury attorneys Chris Rodriguez, Rob James, John Heisse, Andrew Bluth, and Marissa O’Connor discuss two new laws that go into effect in January 2016 that are expected to change the face of various public and private construction projects in California. According to them, these new laws are part of an ongoing effort by the State Building and Construction Trades Council of California (SBCTC) to force public and private owners to use SBCTC-affiliated contractors for various construction work and to impose obligations traditionally tied to public works—e.g., prevailing wage requirements—even on private construction projects.
Developers subject to the Federal Power Act (FPA) should carefully consider the implications of the U.S. Court of Appeals for the District of Columbia Circuit’s recent opinion on the scope of the “municipal preference” under Section 7(a) of the FPA. The Court, in 
Western Minnesota Municipal Power Agency, et al., v. FERC, recently considered the breadth of the “municipal preference” in Section 7(a) of the FPA, including the meaning of “municipality,” and declined to support the Federal Energy Regulatory Commission’s “geographic proximity test” for municipalities to qualify for the preference. Under the Court’s ruling, a municipality qualifies for the municipal preference regardless of their proximity to the location of the development. Developers may now be exposed to greater competition for developments with municipalities having a trump card because they qualify for the municipal preference. As one would hope, the Court of Appeals restated the importance of the Court’s review FERC’s interpretation under the two-step framework of Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842–43 (1984). The opinion, of course, also reflects the Supreme Court’s use of Chevron in deciding a number of important cases the past two terms. This opinion may also result in FERC being more careful in the future.
The “Conflicts Minerals” rule was enacted, with very little debate, as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. This rule places new regulatory requirements on the nation’s financial system in the wake of the 2008 economic emergency. To many observers, the most troublesome aspect of the rule involves the federal government’s authority to compel the regulated community—in this instance, companies that may have some connection to the civil wars in the Congo—to label what they do in censorious terms as part of public SEC filings. In particular, the SEC’s conflict minerals rule purports to compel certain disclosures affecting the acquisition of certain minerals produced in the Democratic Republic of the Congo. How far can the government go, consistent with the First Amendment, to require companies and corporations to say what the government rules that that must say?
Early this year, Governor Andrew M. Cuomo signed a bill requiring assessors and contractors in the mold remediation industry to be licensed and their workers properly trained, effective January 1, 2016. The bill was amended later in the year, but the date it goes into effect remains the same. The new law requires the licensing of assessors, contractors and workers, and a written mold remediation plan, prepared by a licensed mold assessment contractor, to ensure the proper remediation of mold. Additional information about the Mold Program is available on the New York State Department of Labor’s website.
Additional Source: January 2016, New Hampshire Will Require Mold Assessment Certification
Just in time for the holidays, the Nevada State Contractors Board has issued an Industry Bulletin confirming that, beginning this week, it will begin issuing a one-time refund check to eligible licensed contractors as of June 30, 2015. It will disburse approximately $2.6 million in excess funds to nearly 15,000 current active and inactive licensees on a pro-rata basis of their license fees paid over the past 5 years. It confirmed that contractors who have maintained an active or inactive license over the past 5 years with no lapse are expected to receive an estimated refund between $39 and $198.
UPDATE: The California Contractors State License Board has confirmed that all currently licensed contractors contractor’s bonds must be increased to $15,000 by January 1, 2016. Contractors Urged to Make Sure They Increase Bond Coverage to $15,000 Before End of Year; Applies to All Licensees, Industry Bulletin 15-14.
A California contractor’s bond is a requirement for the issuance of an active license, reactivation of a license, and for the maintenance of an actively renewed license. Effective January 1, 2016, the required amount of a contractor’s bond will increase from $12,500 to $15,000, as a result of California Senate Bill 467 (Hill). As a condition precedent to the issuance, reinstatement, reactivation, renewal, or continued maintenance of a license, SB 467 requires the Contractors State License Board to require the applicant and/or licensee to file or have on file a contractor’s bond in the sum of $15,000. Contractors should contact their bond agent or broker, or existing bond company for guidance on increasing their bond amount to comply with this new requirement. In addition, we expect the CSLB to provide further instructions on contractor’s compliance obligations in the coming months.
Additional Source: CSLB, Bond Requirements
Contractors employing workers that perform work outside have long known the importance of addressing outdoor heat hazards in their Injury and Illness Prevention Programs (IIPP). A recent ruling by the California Occupational Safety and Health (DOSH or Cal/OSHA) Appeals Board should serve as a reminder that, at least in California, an employer’s responsibility isn’t limited to the Great Outdoors—the less-great indoors have heat hazards that must be addressed, as well. The Appeal’s Board recently ruled in favor of the Cal/OSHA 2012 citations against two employers premised on their IIPP and related training program failing to effectively address the hazards of indoor heat. The Appeals Board’s ruling affirms that the IIPP standard is not limited to outdoor heat hazards and all employers have a responsibility for ensuring compliance with all Cal/OSHA standards, not just the employer in charge of the worksite. According to the Appeals Board, contractors’ IIPPs and related employee training programs must cover both outdoor and indoor heat hazards.
Gravel2Gavel Construction & Real Estate Law Blog