Articles Posted in Construction Generally

On September 9, 2014, Governor Edmund G. Brown Jr. signed into law Assembly Bill 2053 amending California Government Code § 12950.1. Subdivision (b) requires an employer, as defined, to include prevention of abusive conduct , as defined, as a component of the training and education required in Subdivision (a) of Government Code § 12950.1.

For purposes of Section 12950.1, “employer” means “any person regularly employing 50 or more persons or regularly receiving the services of 50 or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities” (Cal. Gov. Code § 12950.1(g)(1)) and “abusive conduct” means “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious” (Cal. Gov. Code § 12950.1(g)(2)).

Additional Source: California Legislative Information, A.B. 2053 (2014)

On July 8, 2014, Governor Edmund G. Brown Jr. signed into law Assembly Bill 326 amending California Labor Code § 6409.1. Subdivision (b) requires every employer, in addition to the report required by Subdivision (a), to make an immediate report to the Division of Occupational Safety and Health by telephone or email of every case involving an employee’s serious injury or illness or death. Failure to do so, will expose the employer to a civil penalty of not less than $5,000.

As amended, Section 6409.1 reads:

“(a) Every employer shall file a complete report of every occupational injury or occupational illness, as defined in [Cal. Labor Code § 6409(b)], of each employee which results in lost time beyond the date of the injury or illness, or which requires medical treatment beyond first aid, with the Department of Industrial Relations or, if an insured employer, with the insurer, on a form prescribed for that purpose by the department. A report shall be filed concerning each injury and illness which has, or is alleged to have, arisen out of and in the course of employment, within five days after the employer obtains knowledge of the injury or illness. Each report of occupational injury or occupational illness shall indicate the social security number of the injured employee. In the case of an insured employer, the insurer shall file with the division immediately upon receipt, a copy of the employer’s report, which has been received from the insured employer. In the event an employer has filed a report of injury or illness pursuant to this subdivision and the employee subsequently dies as a result of the reported injury or illness, the employer shall file an amended report indicating the death with the department or, if an insured employer, with the insurer, within five days after the employer is notified or learns of the death. A copy of any amended reports received by the insurer shall be filed with the division immediately upon receipt.

(b) In every case involving a serious injury or illness, or death, in addition to the report required by [Cal. Labor Code § 6409.1(a)], a report shall be made immediately by the employer to the Division of Occupational Safety and Health by telephone or email. An employer who violates this subdivision may be assessed a civil penalty of not less than five thousand dollars ($5,000). Nothing in this subdivision shall be construed to increase the maximum civil penalty, pursuant to [Cal. Labor Code §§ 6427 to 6430], inclusive, that may be imposed for a violation of [Cal. Labor Code § 6409.1].”

Subdivision (b) of Labor Code § 6409 defines “occupational illness” to mean “any abnormal condition or disorder caused by exposure to environmental factors associated with employment, including acute and chronic illnesses or diseases which may be caused by inhalation, absorption, ingestion, or direct contact.”

Additional Source: Safety Training is Saving Lives, but Four Industries Remain High Risk; California Legislative Information, A.B. 326 (2014); State of California, Department of Industrial Relations, Division of Occupational Safety and Health (DOSH) (aka Cal/OSHA) ; State of California, Employer’s Report of Occupational Injury or Illness; Cal/OSHA Enforcement Unit Regional and District Offices

Today, the State of Nevada Contractors Board (Board) issued a Notice of Intent to Act Upon a Regulation, confirming that it will conduct a public workshop on Monday, December 1. 2014 at 9:00 a.m. PST and a public hearing on Wednesday, December 10, 2014 at 9:00 a.m. PST on the proposed amendments to Nevada Administrative Code § 624.170. The proposed amendments add a sub-classification to the B-General Building classification to allow remodeling and improvement of interior spaces, including structures which exceed more than three stories in height and buildings with fewer than three stories that are connected to structures which exceed three stories.

As currently drafted, Section 624.170 would be amended to add:

Commercial Remodeling (subclassification B-6): The remodeling and improvement of interior spaces in structures which support, shelter or enclose persons or animals or other chattels, including structures which exceed more than three stories in height and buildings with fewer than three stories that are connected to structures which exceed three stories. The provisions of this section do not authorize the holder of a classification B-6 license to perform modification of existing structural members or the installation of new structural members.

Anyone that wants to comment upon the Board’s proposed action may appear at the workshop or may address their comments, data, views or arguments, in written form to the Executive Officer of the Nevada State Contractors Board, 2310 Corporate Circle, Suite 200, Henderson, Nevada 89074 and the Reno office located at 9670 Gateway Drive, Suite 100, Reno, Nevada, 89521. Written submissions must be received by the Board 5 days prior to the workshop. If no person who is directly affected by the proposed action appears to request time to make an oral presentation, the Board may proceed immediately to act upon any written submissions.

Additional Sources: Nevada State Contractors Board, Notice of Intent to Act Upon a Regulation (Nov. 5, 2014); Nevada State Contractors Board, Proposed Temporary Regulation of the State Contractors Board (NAC 624.170); NV Licensing Board to Discuss Proposed Amendments to NAC 624.170 Concerning Remodel of High Rise Buildings

On November 1, 2014, the Contractors State License Board (CSLB) submitted its Sunset Review Report to the Legislature. Among other things, the Sunset Review Report highlights select CSLB achievements. It also includes a list and summary of the legislation sponsored by the CSLB from 2011 through 2014, and urges the Legislature and Administration to support efforts to modernize and streamline laws and regulations related to contracting in California to help ease complicated requirements for contractors and confusing language that prevents consumers from making informed choices. Of particular interest, several table summarize licensee-related data, including Table 6 – Licensee Population, Table 7A – Licensing Data by Type, and Table 7b – Total Licensing Data. Section 4 further responds to questions about the CSLB’s licensing program.

The CSLB’s previous sunset review was conducted in 2011; California Senate Bill 543 (Steinberg, Chapter 449, Statutes of 2011) extended CSLB’s sunset date from January 1, 2012 to January 1, 2016.

Additional Resource: California Department of Consumer Affairs, Contractors State License Board Sunset Review (November 2014)

Congratulations Steve Thornton! Jose Rodriguez, Assistant Director for Field Services and Public Safety for the Washington State Department of Labor & Industries (the “Department”), announced in the Electrical Currents newsletter from the Office of the Chief Electrical Inspector, Vol. 18, No. 11 (Nov. 2014), the appointment of Stephen Thornton as the new Chief Electrical Inspector, effective October 16, 2014.

According to Jose, Steve has worked for the Department for 20 years, working as an Electrical Inspector, with the last 17 years serving as an Electrical Inspection Supervisor since July 1996. Congratulations and thank you for your service!

Additional Source: Chief Electrical Inspector for WA Department of Labor & Industries Stepping Down; California Looking For Next Registrar of Contractors

In a recent press release, California Contractors State License Board Registrar Steve Sands reminds contractors that “[c]ontractor licenses are not transferrable between anyone: associates, friends – family members included.” In California, all home improvement jobs valued at $500 or more, which includes both labor, material costs and other item costs combined, are required to be performed by a person or entity that is properly licensed by the CSLB. The licensee is responsible for the work performed under its contractor’s license number being done in all material respects in accordance with accepted trade standards for good and workmanlike construction. If it is not, it is exposed to disciplinary action by the CSLB, which could include a civil penalty and/or citation, among other things. It is also responsible for maintaining the appropriate bond (Cal. Bus. & Prof. Code § 7071.6) and workers’ compensation insurance (Cal. Bus. & Prof. Code § 7071.6).

Moreover, California Bus. & Prof. Code § 7068.1 requires the licensee’s qualifier (e.g., the responsible managing employee (RME), officer (RMO), or manager/member (RMM)) to be responsible for exercising that “direct supervision and control of his or her employer’s or principal’s construction operations” to secure compliance with the Contractors’ State License Law, Bus. & Prof. Code §§ 7000 et seq. A violation of Section 7068.1 comes with a hefty civil penalty and the possibility of a criminal penalty. Subdivision (e) of Section 7068.1 contemplates that it “shall constitute a cause for disciplinary action and shall be punishable as a misdemeanor by imprisonment in a county jail not to exceed six months, by a fine of not less than three thousand dollars ($3,000), but not to exceed five thousand dollars ($5,000), or by both the fine and imprisonment.” The CSLB recently warned license qualifiers that, “[w]ith consumer risk in mind, CSLB is aggressively and stringently taking enforcement actions against those involved in this trend [of not properly supervising work that is being performed]… .”

Additional Source: CSLB, Watch Out for Contractor’s Who Try to ‘Share’ a License

The Texas Commission of Licensing and Regulation’s (Commission) recently amended the existing rules governing air conditioning and refrigeration contractor applicable codes, 16 Tex. Admin. Code, Chapter 75, § 75.110. Revised Section 75.110 states:

“(a) The commission adopts the following as the applicable codes as referenced in the Act and this chapter: (1) 2009 edition of the Uniform Mechanical Code; and (2) 2009 editions of the International Mechanical Code, the International Residential Code, and other applicable codes.
(b) The 2009 codes will be in effect through December 31, 2014. All air conditioning and refrigeration work permitted or started prior to January 1, 2015, may be completed in accordance with the 2009 code editions.
(c) The commission adopts the following as the applicable codes as referenced in the Act and this chapter: (1) 2012 edition of the Uniform Mechanical Code; and (2) 2012 editions of the International Mechanical Code, the International Residential Code, and other applicable codes.
(d) The 2012 codes will be effective January 1, 2015.” (Emphases added).

The Texas Department of Licensing and Regulation (Department) drafted and distributed the proposed rules to persons internal and external to the agency and published them in the April 11, 2014, issue of the Texas Register (39 Tex. Reg. 2735). Prior to the deadline for public comments (May 12, 2014), the Department received four public comments regarding the proposed rules. The public comments and the Department’s response to the public comments are available in its Justification for Administrative Rule Adoption.

The Department also recently lowered the number of hours of instruction on state laws and rules required annually from 2 hours to 1 hour, effective for licenses that expire on or after June 1, 2014. The total number of continuing education hours required annually, however, will remain at 8 hours. The other 7 hours of instruction must be courses taken in one or more of the following subjects: (1) Texas Occupations Code, Chapter 1302, Air Conditioning and Refrigeration Contractors; (2) Title 16, Texas Administrative Code, Chapter 75, Air Conditioning and Refrigeration Administrative Rules; (3) The International Mechanical Code, the Uniform Mechanical Code, or other applicable codes; (4) Ethics; (5) Business practices; or (6) Technical requirements. Continuing education courses must be completed within the term of the license being renewed. The continuing education courses must have been taken within the term of the license to be renewed, e.g., if the license expires on December 15, 2013, the continuing education courses must have been taken between December 15, 2012 and December 15, 2013.

Additional Source: Texas Department of Licensing and Regulation, Justification for Administrative Rule Adoption, Air Condition and Refrigeration Contractors; Texas Department of Licensing and Regulation, Air Conditioning and Refrigeration Contractors Continuing Education

The practice of including an arbitration provision in all types of contracts has become quite common. Including such a provision in a contract should, however, always be a considered choice, based on sound advice, to avoid any misunderstandings about the breadth, scope and consequences of including such a provision. Yesterday, Pillsbury attorney Ray Sweigart published his client advisory titled About that English Law and Arbitration Clause: Consider enforcement implications before signing. In the Advisory, he discusses the practice, in international commercial contracts, parties with no operations or other relationship to England or the United Kingdom specifying English law as controlling, with a clause providing for arbitration of disputes in London. In Cruz City v Unitech & Ors, [2014] EWHC 3131 (Comm), the English High Court was faced with a dispute over enforcement of an arbitral award between a Mauritian claimant and an Indian defendant. Noting the English law policy that judgments of the English court and English arbitration awards should be complied with, and under the principles set out in Masri v Consolidated Contractors International (UK) Ltd (No 2), [2008] EWCA Civ 303, the court held that it was appropriate to enforce an arbitral award by the appointment of receivers over the foreign defendant’s assets.

If you have any questions about the content of this blog, please contact the Pillsbury attorney with whom you regularly work or Ray Sweigart, the author of this blog.

The Joint Board of Licensure and Certification, State of New Hampshire compiled a list of the most common electrical installation deficiencies in the State of New Hampshire in 2014, formatted to the 2014 edition of the National Electrical Code (NFPA 70-2014) as follows:

• Use of electrical equipment without following the manufacturer’s instructions, including installation and securing of expansion fittings in runs of Rigid Polyvinyl Chloride (PVC) Conduit and improper tightening of electrical connections
• Inadequate clearances: working space, clear spaces, headroom and dedicated equipment space
• Improper sealing of underground raceways
• Improper grounding of electrode system
• Bonding of metal water piping in the vicinity of separately derived systems
• Wireways and consideration of 310.15(B)(3)(a)
• Improper use of NM cable in other structures permitted to be Types III, IV or V construction
• Improper installation of exposed vertical risers from fixed equipment
• Improper use of Flexible Cords and Cables, Article 400
• Failure to use weather-resistant outdoor receptacles
• Inadequate mounting height of switches
• Failure to use proper methods for circuit directories and circuit Identification
• Improper connection of septic pumps
• Failure to comply with signage requirements
• Lack of separation of Emergency System Conductors from other conductors
• Misunderstanding of the requirements for the installation of branch circuits supplying emergency lighting

Additional Source: Electrical Licensing Concerns And Commonly Found Installation Deficiencies in the State of New Hampshire 2014