Construction Advisor Blog

Subscribe via RSS
Visit Blog
By: Lang & Klain, P.C.

Latest from Construction Advisor Blog - Page 3

In an effort to reduce heat-related illnesses and injuries for workers, the State of Arizona is stepping up the rate of workplace inspections for employers in high-exposure industries.

On July 17, 2023, the Arizona Division of Occupational Safety and Health (ADOSH)

announced

the launch of a “

state emphasis program

” (SEP) focused on “high heat” industries such as construction and agriculture. One provision of the SEP calls for inspections on any day that the National Weather Service has announced a heat warning or advisory for the local area.

Arizona employers in any industry that involves outdoor work (or work

…
Continue Reading ADOSH inspection program focuses on heat-related illness, injury

A new federal law requires many employers to make reasonable accommodations to meet the needs of pregnant employees.

Reasonable Accommodations.

The PWFA requires covered employers to provide to pregnant employees “reasonable accommodations,” which the

EEOC broadly describes

as “changes to the work environment or the way things are usually done at work.” Example include:

  • allowing more frequent breaks;

  • modifying work schedules;

  • providing seating;

  • allowing temporary transfers to less physically demanding positions;

  • modifying workplace policies regarding food or drink consumption; and

  • providing or modifying necessary equipment.

Your company may be excused from providing an accommodation if doing so would impose an

…
Continue Reading Pregnant Workers Fairness Act: What employers should know

Despite last week’s news that the state is pausing the approval of future Phoenix-area single-family development that over-relies on groundwater, don’t expect residential construction to dry up in your lifetime.

By

Kent Lang

and

Mike Thal

On June 1, Governor Katie Hobbs released the Arizona Department of Water Resources’ (DWR) updated study of the

Phoenix area’s groundwater conditions

. The study projects that, 100 years from now, the demand for groundwater in the region will have fallen short of supply by about 4% (or 4.86 million acre-feet).

That is a significant projection, because Arizona’s groundwater laws bar the DWR from

…
Continue Reading Groundwater restrictions: The sky is not falling, and residential contractors can stay the course

Legal doctrines called “piercing the corporate veil” and “alter ego” allow liability to reach individuals and entities outside a corporation or LLC. Attention to a few important details can help keep you protected..

Alter ego and veil piercing problems can arise when the interests of the entity and its owner(s) are so unified that they are essentially indistinguishable from each other.

The applicability of this legal theory will always depend on the facts of a case, but personal liability can be imposed if another party can prove that:

  • there was a “unity of control” between the corporation/LLC and another individual

…
Continue Reading LLCs and Corporations: How to preserve your liability protection

At the beginning, everyone is friendly with each other and excited for the upcoming project. Your enthusiasm might cause you to shortcut your normal procedures and to dive into the project before you have executed a comprehensive contract. After all, this is a friend of a friend – what could go wrong?

What

could

go wrong is what

always

could go wrong when you aren’t protected by contractual safeguards. Starting work without executing a comprehensive contract beforehand can lead to costly (and avoidable) problems down the road, such as arguments over:

  • what is or is not included within the scope

…
Continue Reading Contractors: Don’t let “friend of a friend” projects cause you to take costly shortcuts

The contractor incurred the Labor Department’s wrath

not

because the company paid its workers on a piece-work basis, but because it did not keep accurate time records to show that the wages paid satisfied  minimum wage and overtime requirements.

In 2020, while the Labor Department’s lawsuit was pending, Judge Snow issued an injunction ordering the contractor to:

  • stop maintaining false records;

  • implement a reliable timekeeping system under which employees would clock and clock out each day;

  • maintain accurate and complete records of wages paid and to stop paying wages through non-payroll accounts;

  • stop listing false regular rates of pay on

…
Continue Reading Piece work done wrong: Contractor settles with Labor Department for $2.6 million

Shutting down a boisterous short-term rental “party house” is not easy, but the right combination of legal and administrative strategies and an understanding of local ordinances may help restore peace and quiet to your neighborhood.

This article was originally published in December 2020.

A Serious Problem

For neighbors, the consequences are real and serious. An “unruly gathering” can result in:

  • increased vehicle and pedestrian traffic (including Uber and Lyft pickups and deliveries);

  • parking congestion (on public and private property);

  • noise from guests, vehicles, music, fireworks, etc.;

  • public intoxication;

  • trespassing (including unwanted visits from disoriented guests);

  • sanitation problems (trash, bottles and

…
Continue Reading Fighting back against party houses and other short-term rental nuisances

Liquidated damages provisions are generally enforceable if they are intended to compensate the non-breaching party rather than penalize the breaching party.

The Court’s decision in

Young v. Allen Homes

provided more guidance on how to determine whether a particular liquidated damages provision is enforceable in the construction context. This guidance can help owners avoid common mistakes in drafting such provisions before construction begins, and it can help contractors resist unfair liquidated damages claims at the end of a project.

Background.

In April 2018, Michael and Debra Young hired Allen Homes to build their new home. The parties’ contract called for

…
Continue Reading Liquidated damages in construction contracts: Are they enforceable?

For a business of any size, a single hack could threaten the entire company. Precautionary measures can help protect you from financial calamity.

The headlines about rising costs and interests rates are everywhere. But what about the rising costs of scams?

By now, you probably heard a story of someone you know falling for an e-mail scheme and sending money overseas. But unlike the schemes of old, people are not falling for the “Nigerian prince” promising riches. Instead they are victims of schemes that look more like identity theft. How do you know that the person reading the e-mails you

…
Continue Reading Hackflation: A real business threat that is not going away soon

The Arizona Supreme Court rules that a homebuilder cannot contract its way out of its obligations under the implied warranty doctrine.

  • See:

    “

    Court Reaffirms Contract Requirement in Implied Warranty Breach

    ,” by Mike Thal, March 2015

Despite the courts’ repeated reaffirmation of that doctrine, at least one homebuilder tried to use its sales contract to escape its implied warranty obligations. That strategy was shot down in September 2022, when the Arizona Supreme Court, in

Zambrano v. M & RC II LLC

,

sent back for trial a homebuyer’s lawsuit that the Court ruled had been dismissed in error.

Background

…
Continue Reading Implied warranty protection overrules a conflicting contract provision

As with any contract, understand your potential obligations when entering into an equipment lease.

While one of the leased cranes was in Sepesy’s possession, its telescopic boom was damaged, making the crane inoperable.

The damaged crane was stored for some time at Sepesy’s property before a towing company was hired to transport the damaged crane to a repair company. After loading the crane and leaving Sepesy’s yard, the tow truck driver drove into a ditch, flipping the trailer and damaging the crane’s exterior.

The crane was eventually repaired and returned to service, but only after more than 14 months of

…
Continue Reading Risks of equipment leasing for contractors