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Trent Cotney Featured in The Spring Edition of Florida Construction News

We are proud to announce that Trent Cotney is featured on the cover of the spring 2017 issue of Florida Construction News Magazine. The magazine article profiles Trent and the firm and discusses how growing up in the construction industry guided his decision to protect the interests of construction and roofing professionals. To read the article or to order a copy of the publication, visit the Florida Construction News website at http://www.floridaconstructionnews.com/latest-florida-construction-news-magazine-issue-published/.

Earlier this year, a Florida appellate court overruled a decision denying a claim for attorneys’ fees by a prime contractor and its surety after prevailing in its defense of a Miller Act claim. In U.S.A. f/u/b/o RMP Capital Corp. v. Turner Construction Co., 2017 WL 244066 (11th Cir. 2017), a subcontractor and sub-subcontractor on a federal government project filed suit against the prime contractor and its sureties to collect against the payment bond. On the first day of trial, the Miller Act claims were voluntarily dismissed. The prime contractor and sureties then requested their attorneys’ fees and costs related to those claims. The district court awarded some costs but denied the request for attorneys’ fees.

The Miller Act does not explicitly mention entitlement to attorneys’ fees, even to a prevailing plaintiff. Nonetheless, the appellate court overruled the district court decision by holding that a prime contractor and its sureties can be entitled to attorneys’ fees when prevailing in a Miller Act bond claim. These instances are limited to when there is an enforceable contract allocating attorneys’ fees. Based on this decision, if a subcontract includes a prevailing party provision, the subcontractor could be responsible for the attorneys’ fees of the prime contractor and sureties in an unsuccessful Miller Act bond claim.

The legislature recently passed a modification to the Florida Homeowners’ Construction Recovery Fund provision which is required in construction contracts. The language was revised as follows:

FLORIDA HOMEOWNERS’ CONSTRUCTION RECOVERY FUND

PAYMENT, UP TO A LIMITED AMOUNT, MAY BE AVAILABLE FROM THE FLORIDA HOMEOWNERS’ CONSTRUCTION RECOVERY FUND IF YOU LOSE MONEY ON A PROJECT PERFORMED UNDER CONTRACT, WHERE THE LOSS RESULTS FROM SPECIFIED VIOLATIONS OF FLORIDA LAW BY A LICENSED CONTRACTOR. FOR INFORMATION ABOUT THE RECOVERY FUND AND FILING A CLAIM, CONTACT THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD AT THE FOLLOWING TELEPHONE NUMBER AND ADDRESS: (850) 487-1395, 2601 Blairstone road, Tallahassee, FL  32399-1039.

Failure to include the mandatory contractual disclosures could expose contractors to civil liability. Please feel welcome to reach out to Cotney Construction Law for a free consultation to discuss your current proposal and/or contractual documentation.

The proposed changes to the FLSA provision governing overtime pay have been a major concern amongst small and larger businesses nationwide. The most controversial proposed change involved the increase of the “salary test” threshold from $23,660 to $47,476. Essentially, this would mean that any salaried worker making below this new threshold could be a viable candidate for overtime pay, regardless of the worker’s job duties. This proposed change has left many employers considering changes to their scheduling and compensation policies. The new overtime rule was scheduled to go into effect on December 1, 2016.

In late November of 2016, a Texas Federal Court issued a nationwide order preventing the planned implementation of this policy. In State of Nevada, et al v. United States Department of Labor, et al, the Texas Federal Court granted injunctive relief to the 21 states (and more than 50 business organizations) bringing the action by enjoining the Department of Labor “from implementing and enforcing” its new rule. While the court rejected the movant’s argument that the new policies were unconstitutional, the court did find that the federal government’s actions violated the Fair Labor Standards Act by supplanting the “duties test” with a “de facto salary-only test.” Ultimately, the Court found that the new law disregarded the law’s previous intention of considering both the salary and the duties of an employee when determining the exemption status of the employee. This decision is currently being appealed and will be a strongly contested issue from a legal, economic and political standpoint for the near future.