Virginia Mechanic's Liens - Deadline Overview

Below is a copy of a "cheat sheet" summary of important deadlines relating to Virginia mechanic's liens John Lockard and I prepared for a recent talk. Obviously not intended as a complete overview of mechanic's lien law, times or requirements; but a simple "keep in mind" overview.

2014 Carter Gunn Memorial Stressbuster 8K - 27 Nov

Make your reservations now for the 2014 Carter Gunn Memorial Stressbuster 8K fun fun. This year the Stressbuster 8K is November 22, 2014 at First Landing State Park, Virginia Beach, VA. Registration starts at 7:30am; the race starts at 9:00am.

This is a fun, cross country 8K race along historic, scenic and rolling trails in First Landing State Park. The race is Chronotrack B-tag Timed.

All proceeds go to the Carter T. Gunn Fund, which is part of the Vandeventer Black Foundation. The Carter T. Gunn Fund is dedicated to fighting depression and educating the public about mental health.

More information about the Stressbuster 8K, including for registration or being a sponsor, is available at the following web link:

http://www.cartergunnstressbuster8k.mettleevents.com/

DOL Final Rule Raises Federal Contract Minimum Wage to $10.10 per hour

DOL issued its final rule on October 7 implementing President Obama's Executive Order 13,658 and increasing the minimum wage for workers performing federal service and construction contracts to $10.10 per hour. The final rule also sets future increases to be based upon the Consumer Price Index. More information about the final rule is available at the following DOL media web link:

http://www.dol.gov/opa/media/press/whd/WHD20141888.htm

Vandeventer Black Labor & Employment Law Seminar: November 18, 2014, Sheraton Norfolk Waterside Hotel

The Labor & Employment group of our firm is pleased to announce its 29^th annual Labor & Employment Law Review and Update!  The seminar will be held on November 18, 2014 at the Sheraton Norfolk Waterside Hotel from

8:30 a.m. to 4:00 p.m. Topics Include: Recent Developments in Labor & Employment Law • Affordable Care Act Updates • Managing Employee Leave • Workers’ Compensation Tips • Hiring & Firing • New Requirements for Government Contractors. Please share the attached flyer with your clients.

 Individuals can register online at www.vanblk.com/Events/LaborEmploymentSeminar by November 10, 2014. The cost for the seminar is $175 per person. This includes the course materials, breakfast, lunch, and valet parking. Additional attendees from the same organization may attend for $160 per person.

Vandeventer Black’s Labor & Employment team represents a wide variety of organizations and businesses in labor and employment law and litigation matters, including discrimination claims, union avoidance, NLRB charges, wrongful discharge, breach of contract suits, trade secret/unfair competition suits, wage and hour, employee benefits, workers’ compensation defense, immigration, and employee relations counseling and training.

Federal Contruction Payment Requirements: A Thumbnail Overview

There are multiple layers and issues associated with payments for federal construction projects; both by agencies to contractors and by contractors to lower tiers. A thumbnail overview of the basic requirements are:

The underlying basic federal construction payment mandates are in the Federal Prompt Payment Act (31 U.S.C. §§ 3901, et seq.) and FAR Subpart 32.9, et seq. While having many aspects, the basic mandates are that payments should be promptly made by both agencies to contractors and contractors (and their lower tiers) to those of lower tier below them.

While there are more involved aspects, the short overview is that payments are due by federal agencies: 1) on the date specified in the contract; 2) in accordance with discount terms; 3) in accordance with Accelerated Payment Methods; or – most typically – 4) 30 days after proper invoice.

When received, contractors then have 7 days to make payment to their lower tiers (subcontractors and suppliers), and those lower tiers then 7 days to make payment to their lower tiers, and so forth. Those requirements must be incorporated into all construction contracts.

However, the prompt payment requirements do still allow certain withholdings, if: they are provided for in the contract; and relate to retainage or relate to a withholding about which the contractor has given notice to both the lower tier and the agency.

If contractors discover after their payment application but before they make payment to their lower tiers that there is cause to withhold payment from a lower tier, then they can withhold payments; but only if notice has been furnished to the lower tier of the withholding cause, with copy to the agency.

Payment must then be made to the lower tier as soon as practicable after the withholding cause has been corrected (and within 7 days of corrective action if agency has already made payment to the contractor or alternatively within 7 days after payment to the contractor).

Of note, contractors may not request payment from agencies for any amounts withheld or retained in accordance with contract rights until such time as the contractor had determined, and certified to the agency, that the subcontractor is entitled to payment. Of further note, false certifications respecting payments by contractors are subject to other federal laws, including the False Claims Act (31 U.S.C. §§ 3729, et seq.).

New "Fair Pay and Safe Workplace" Mandates Directed By President Obama



 

 

CONSTRUCTION AND GOVERNMENT CONTRACT GROUP ALERT

 

 

Fair Pay and Safe Workplaces Executive Order Signed by President Obama On July 31, 2014

 

On July 31, 2014, President Obama issued Executive Order 13673, entitled “Fair Pay and Safe Workplaces.” It is applicable to those contracting with the Federal Government and its stated purpose is to insure those contractors “understand and comply with labor laws.”

 

The Executive Order requires new pre- and post-contract award actions by both agencies and contractors (and subcontractors), creates at least one new senior agency official position, and requires regulatory amendment consideration, including regarding consequences. Federal contractor will need to develop implementation strategies to comply with this new EO.

 

Key aspects of EO 13673:

1.       Pre-Award: For offers exceeding $500,000, solicitations must include offer representations regarding labor law violations within the preceding 3-year period. Consideration of those representations will be part of responsibility determinations. Contractors must similarly incorporate into their subcontracts similar subcontractor disclosures.

 

2.       Post-Award: Contractors must update their labor law representations every 6 months during contract performance. Contracting officers must then consider whether action is necessary because of any changes to the representations (such as requiring remedial measures, providing assistance, resolving issues, or in appropriate instances termination or referral for suspension or debarment). Contractors must similarly obtain updates from subcontractors, and then determine whether action is necessary against their subcontractors based on those updates.

 

3.       Labor Compliance Advisors: Each agency is required to designate a senior agency official as its Labor Compliance Advisor (LCA). The LCA have various duties, including best practices interfaces, agency and contractor coordination, and assistance to contracting officers regarding appropriate actions associated with EO’s requirements.

 

4.       Government-wide Consistency: To help facilitate agency consistency regarding implementation, the EO directs FAR Council consultation with the Department of Labor and other key agencies to propose FAR amendments to implement the EO, including regarding violation consequences. The EO further directs the Secretary of Labor to develop guidance regarding EO implementation, including also regarding violation consequences.

 

5.       Paycheck Transparency: This aspect of the EO requires contractors whose contracts are subject to the pre- and post-award requirements discussed above to provide all individuals performing work under their contracts and for whom they are required to maintain wage records under applicable law (such as the Davis-Bacon Act, the Service Contract Act or equivalent state law) with documented information concerning that individual’s hours worked, overtime hours, pay, and any additions made to or deductions from pay. Contractors much incorporate those same requirements into their subcontracts for subcontractors to provide the same information to their workers.

 

6.       Complaint and Dispute Transparency: This aspect of the EO limits contractor ability to mandate arbitration of disputes. For all federal contracts that exceed $1 million, contractors must agree that the decision to arbitrate claims under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise. This same requirement must be incorporated into subcontracts. Limited exceptions are: a) contracts or subcontracts for the acquisition of commercial items or commercially available off-the-shelf items; b) contractor or subcontractor agreements covered by collective bargaining agreements; or c) contractor or subcontractor agreements with valid arbitration provisions prior to bidding upon a contract covered by the EO (but if such contracts allow for the changing of terms, renegotiation or replacement, then the EO does apply).

 

Whether these terms are truly fair or will have any true impact upon workplace safety will be in the eyes of affected persons and companies. Regardless, the changes are significant, will required detailed planning, and – unfortunately – are likely to be a significant source of future litigation, and potentially detrimental administrative action for the unwary.

 

A copy of EO 13673 is currently available at the following White House web-link:

http://www.whitehouse.gov/the-press-office/2014/07/31/executive-order-fair-pay-and-safe-workplaces

 

For more information about EO 13673 or other construction or government contracts related matters, please contact Neil Lowenstein, or any other member of the Vandeventer Black Construction and Government Contracts Group - VanBlackLaw.com.

 

 

President Issues Executive Order Banning Sexual Orientation and Gender Identity Discrimintation

On July 21, 2014, President Obama further amended Executive Order 11478 regarding Equal Employment Opportunity in the Federal Government by including the ban of sexual orientation or gender identity discrimination by federal contractors. The President resisted calls to carve out any exceptions for religion-affiliated employers; however, such employers may seek to challenge that. In any case, for now, the amendments add sexual orientation and gender identity to the list of classes of employees protected from discrimination by federal contractors. Long terms impacts of this remain to be seen.

The amendments can be found at the following White House web link:
http://www.whitehouse.gov/the-press-office/2014/07/21/executive-order-further-amendments-executive-order-11478-equal-employmen