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Should You Use a Joint Check Agreement? Part 2

There is no denying that joint check agreements are common in the construction industry. Owners, contractors, subcontractors, and suppliers primarily use them for greater peace of mind regarding payments and liens. In part one of the article, our Ft. Myers contractor attorneys discussed joint check agreements and their benefits. In this final section, we will discuss factors that construction professionals should be cautious of.

They Are Not Regulated

Be advised that joint check agreements are completely unregulated. There is no industry standard nor are they governed by state or local law. Since there is no standard joint check form, parties are free to draft a legally sound agreement that suits their project needs and personal best interest.

Signing the Agreement

Joint check agreements are essentially contracts and therefore need to be agreed to and signed by all parties before issuing the check. Agreements that are not signed by all parties are invalid.

Keeping Track of Agreements

When dealing with several lower-tier parties, it can be difficult to keep track of which have agreements and which do not. If the general contract is not careful, an intended recipient may not receive the check and the funds designated to that recipient could be pocketed by another party on the joint check. To avoid this, all parties should endorse the check before it gets cashed.

Understanding the Terms of the Agreement

When it comes to contracts, language matters. Do the terms state that the paying party is required (obligatory) to issue a joint check or if issuing the check is optional (a permissive agreement). The difference between the two is the deciding factor on whether or not a party can file a lawsuit for nonpayment. Weak language exposes you to legal issues, which is why you should always seek the expertise of a Ft. Myers contractor attorney to either draft an agreement or to review the agreement to ensure it is mutually beneficial.

To speak with a Ft. Myers contractor attorney, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

The construction industry is notorious for payment issues. Will a joint check agreement secure your payment interests? They could, but how safe are they? In this two-part article, our Ft. Myers construction lawyers give an overview of joint check agreements. We will discuss some of their benefits as well as the factors you should take into account when choosing them as a form of payment security. Part two will conclude our series.

What Is a Joint Check Agreement?

A joint check agreement is a contract between construction parties where one party agrees to make a joint payment to two or more other parties. A general contractor, subcontractor, and material supplier typically enter this type of agreement. All parties agree to the payment terms as outlined in the agreement. These agreements can work well if they are managed properly. If not, they can exacerbate payment issues.

The Traditional Structure of Construction Payments

Traditionally, when work is complete on a project, the general contractor pays the subcontractor for their work and then the subcontractor is responsible for paying their suppliers and so on and so forth. Ideally, all parties will be paid and everyone goes home happy. However, as our Ft. Myers construction attorneys have seen time and time again, things do not always go as planned.

How Are Joint Checks Beneficial?

A joint check agreement allows the general contractor to pay both the subcontractor and their material suppliers at the same time and with the same check. Hence, the term joint check agreement. Contractors, subcontractors, sub-subs, suppliers, and others are always looking for ways to ensure they get paid for the labor and materials they provide on a project; and rightfully so. On the other hand, owners and prime contractors may seek to protect themselves against liens. A joint check agreement is often used to accomplish this.

To speak with a Ft. Myers construction attorney, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Imagine, while knee-deep in a new project, receiving a call regarding an issue with a building you were in charge of a couple of years ago. While discovering defects in work completed long ago can be a hassle, dealing with a spoliation claim exacerbates the issue. Spoliation of evidence is a continuous concern in construction litigation cases. Consult with a Naples contractor lawyer for advice on how to preserve relevant evidence. This article will conclude our series. Visit part one to learn more.

Factors Courts Consider for Spoliation Penalties

Once you have a duty to preserve evidence and that evidence is destroyed, the courts will focus on your motive (intent) for destroying the evidence in question. They will assess whether the evidence was destroyed in good faith to address safety concerns on the jobsite, for example. The court will also determine whether you notified the owner or other key parties before proceeding with repairing the defect in question. Lastly, the degree to which the evidence matters to the case has an effect on the extent of the spoliation penalty, if any.

Protecting Yourself Against a Claim

The only way to prevent a construction defects claim is by being proactive. Managing your risks includes working with the right subcontractors, documenting everything daily, staying current with industry codes and standards, following product guidelines and warranties, and relying on a skilled Naples contractor attorney for a contract that protects you against defect risks. Furthermore, protecting yourself against a spoliation claim means preserving evidence as required and properly notifying key parties before making any sudden repairs.

To speak with one of our Naples contractor attorneys, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Given the abundance of residential and commercial buildings being built and remodeled across the nation, construction professionals must stay aware of potential defects that occur during the design or building phase of a project. Once a defect is found, contractors, subcontractors, architects, or engineers must be careful about how they proceed with remedying the defect or else they could be dealing with a spoliation claim. Read this section and part two to learn about construction defects and spoliation of evidence.

Building Defects

Construction defects cause a lot of problems from injuries to workers and civilians to costly repair work. When it comes to liability, it depends on the phase of the project that the defect occurred. Connecting with a Naples construction lawyer who is skilled in handling construction defect cases is highly recommended. There are four types of construction defects. They include design deficiencies, construction deficiencies, material deficiencies, and operation/maintenance related deficiencies.

Ignore or Fix the Mistake?

Discovering a defect can put contractors in a tricky situation. If you discover a defect yourself, it can be a tough decision deciding whether to fix or ignore it. Although you should never ignore a defect, if you do, you could be held liable for damages. However, even if you fix the repairs in good faith, you could still find yourself facing a spoliation claim. Spoliation is intentionally or negligently withholding, hiding, altering, or destroying evidence or documents that are relevant to a litigation.

A Duty to Preserve

Our Naples construction lawyers understand the potentiality of defects occurring during a construction project. If you are cognizant of a potential litigation, you must ensure that relevant documentation and evidence is preserved for examination by the court. When there is a duty to preserve evidence, courts will seek to determine if evidence was destroyed intentionally and will also verify whether proper notice was given to key parties before destroying the evidence. If evidence is not preserved as requested, contractors or other responsible parties risk being penalized by the courts.

To speak with a Naples construction attorney, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Despite federal and state laws that establish employee’s legal rights, workers collectively miss out on billions of dollars in compensation annually because they do not know these laws. As unpaid overtime lawyers in Tampa, we realize that there are several tactics employers use that result in their workers losing wages. In this article, we will cover five ways workers miss out on the compensation they deserve.

They Give You a Base Salary

Many workers earn a full-time salary that is near the minimum wage. Since they are pleased to have the work, they do not realize they should be compensated for overtime hours as well. Even though you have worked additional hours, you may not be earning minimum wage by the end of the week.

Require Remote Tasks

“Business needs” may require tasks to be performed outside the office. For example, if an employer requires an employee to check their email, monitor the company’s social media pages, or correspond with clients from home, these are all examples of time that should be compensated for.

After Hours Work

Similarly, an employee may be required to perform tasks after their shift ends. For example, in the foodservice industry, a worker may be instructed to clean the restaurant or bathrooms after their shift ends. In an office job, an employee may need to organize their desk space or download a new program onto their desktop at the end of the day. This time should be compensated for as well.

Special Events or Lunch Breaks

Although there is no specific federal or state law pertaining to break allowances, when you are required to work through a meal break, this is time worked. Similarly, an employer may require their employees to take courses to further their skillset, provide them with safety training or workplace policies, or perhaps they are required to attend a mandatory event. These are all examples of time that should be considered “on the clock” that you should be paid for.

Tipped Compensation

If you are a tipped employee, the tipped compensation you receive for your service belongs to you. There are a few exceptions like a tip pool or tip credit that can be applied under the right circumstances; however, the employer may want you to share this compensation with other employees not classified as tipped workers. This is a violation of wage and hour laws established by the U.S. Department of Labor (DOL).

If you are owed additional compensation, it’s important to record the weekly hours you worked, keep any documents relevant to this work, and contact an unpaid overtime lawyer in Tampa for legal advice.

If you would like to speak with one of our unpaid overtime lawyers in Tampa, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Automation is everywhere, but the construction industry isn’t leveraging technology nearly as much as it should. The industry is plagued by inefficiency from its labor shortages to its low productivity. If businesses want to address these issues, they must embrace automation fast. In this section, our contractor attorneys in Mobile, AL will continue our discussion on ways businesses can streamline their processes with automation. Read part one of the article if you have not already.

Research the Automation Tools

What good is a new system if you or your team does not understand it? Don’t get sucked in by the bells and whistles of a new tool. With the help of an expert, evaluate the new tool and see how it fits with the process you are trying to automate. If you are under constant pressure to reduce scheduling delays and building costs, for example, research tools that save time and help you eradicate problems before they become too expensive to fix.

Give Your Team Time to Adopt the New Process

Once you select an automation process that suits your business understand that your team will need to get up to speed. Change is tough, especially in the construction industry where traditional processes are held tightly. If your team is accustomed to doing 2D drawings in paper format, give the team time to rethink traditional processes and help them to understand the benefits of embracing the new processes. If they understand that a new technology will lessen the occurrence of error-prone drawings and schedule delays, they will be more receptive.

Leading Automation Tools Used in Construction

There is a wide variety of automation tools available to construction businesses. Drones can be used to conduct site inspections and to assist with inventory management. Factories that specialize in automated construction processes enhance productivity and increase safety. When implemented correctly, automated technology is capable of accelerating the building process and eliminating human error.

To speak with a contractor attorney in Mobile, AL please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Productivity is one of the greatest challenges in the construction industry. If the industry wants to meet its current demands, it must embrace automation. Construction businesses small and large can benefit from automation. According to a small and medium business trends report, small and medium business have unique needs and challenges that change the more the business grows. Our construction lawyers in Mobile, AL agree that automation is one of the keys to maintaining efficiency and growing a business.

In this first section, we will discuss some advantages of using automation in construction and how businesses should go about using automation to streamline their processes. Be sure to read part two of our article to learn more.

Advantages of Automation in Construction

While an initial investment is a given, automation eventually leads to greater efficiency, easier jobsite monitoring, and a reduction in building costs. Construction work is inherently dangerous. Automated construction optimizes equipment operation and therefore improves not only safety but the quality of work as human error is reduced. Worker safety is prioritized as robots can be used to perform more dangerous tasks, allowing workers to complete the less risky ones.

Plan Well and Start Off Slow

Automation comes with a price tag, which is why proper planning is essential. First, think about the things you want to automate, including the long-term advantages. As you grow, can this new automation tool adapt to your new changes or will you need to seek out another tool to leverage your new growth? Also, calculate the return on investment (ROI) of automation to see if the change will save you time as well as give you the most ROI. Automate the right way and you’ll recoup the cost and resources you invest.

Get Expert Advice

If you are not tech savvy, you should rely on an automation expert to direct you to the right tools for your business. An expert can look at your current processes and help you identify ways in which you can increase efficiency. From there, they can recommend the right tools for your business.

To speak with a construction lawyer in Mobile, AL please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

The construction industry is historically known to be slow to change; however, our Chattanooga construction lawyers see that the industry is working diligently to stay on top of trends as well as making necessary changes to remain competitive. In part one of our article, we discussed big data, green building, and collaborative contracts. In this final section, we will discuss increasing material prices and the labor shortages.

Material Price Increase

Construction prices continue to expand and construction companies are concerned. Trade groups are worried that tariffs on steel and other goods will contribute to the increase as well. According to U.S. Bureau of Labor Statistics, construction material prices are up 5.8 percent from the last year. Despite the steady flow of work, rising costs could lead to contractors’ inability to see more profit. Price fluctuations can make it difficult for contractors to determine pricing when submitting bids. When it comes to an increased cost of materials, contractors are having to absorb the increases and face liabilities for delays under the contract. Additionally, suppliers will likely raise the price of concrete and other materials.

The Labor Shortage

Although construction employment has increased, there’s a smaller pool of candidates. Case in point, the catch-22 of the booming housing market: While there are eager builders and equally eager buyers, the national labor shortage is dramatically slowing down builders. This has resulted in severe home shortages but rapidly increasing home prices. As the labor market tightens, project deadlines are at risk. Furthermore, even when potential job candidates express interest, there’s a noticeable skills gap where the candidate’s experience is not up to par with what the construction company needs. As a result, employers must invest in more training to bridge the gap. As baby boomers retire and younger individuals resist construction as a career option, the industry will continue to contend with a limited supply of skilled workers. Read hiring strategies for ways to beat the labor shortage here.

To speak with a Chattanooga construction lawyer, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

The construction industry has been making moves in several areas from big data to green building to collaborative contracts. Our Chattanooga contractor attorneys believe the future of construction is bright with the major trends listed in this two-part article. Read part two to learn more.

Big Data

Big data involves the collection and analysis of massive amounts of information to improve efficiency. It is a source of valuable information likely to transform the construction process. All data such as materials, labor hours, idle time, daily production, specifications, and change orders must be controlled in order for the data to be effective. The more complex the project, the more critical it is to have the right systems in place to manage it. Companies must move from paper to automation if they want to see better organization, increased productivity, and a reduction in costs.

As technology evolves, construction data can be captured through drones, telematics, wearables, smartphones, and more. Then this data must be analyzed and utilized to make better decisions, improve the company’s profits, improve safety, and increase productivity. To learn more about big data, read this article here.

Green Building

The construction industry is also experiencing a huge shift in green building trends this year. Because there is a greater demand for flexibility and wellness, the planning and designing of work spaces, hotels, retail, apartments and more is changing. Innovation is also on the rise where the demand for adaptable designs, modular buildings, and new technology solutions is growing. Additionally, due to climate changes, limited infrastructure, and security concerns, cities around the country are raising their standards on sustainability, resilience, and certifications in building requirements.

Collaborative Contracts

Are collaborate contracts the key to more efficient projects? The architecture, engineering and construction (AEC) industry thinks so. In spite of technological innovations, the construction industry is slow moving and slow to change in regard to formal contracts. A lack of communication is at the core of a lot of failed projects, and improving the construction industry requires three things, “ trust, collaboration, and innovation.” The public-private partnership (P3) model contract is one that is being used for more complex projects because it encourages collaboration and has the ability to keep projects under schedule and cut costs. For legal advice regarding your next contract, the Chattanooga contractor attorneys of Cotney Construction Law are more than happy to provide you with top-notch contract review and drafting.

To speak with a Chattanooga contractor attorney, please contact us today.

Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

OSHA has recently provided an interpretation of employer actions that they will view as retaliatory and not permissible.  These include certain: (1) Disciplinary policies, (2) Post-accident drug testing policies, and lastly (3) Employee incentive programs.  Below is a brief explanation of these policies to help employers avoid violating OSHA regulations.

DISCIPLINE
OSHA has made it clear that employers are permitted to discipline employees who violate legitimate safety rules or reasonable reporting procedures.  However, employers are prohibited from disciplining employees for simply reporting a work-related injury or illness.  Examples of impermissible disciplinary actions include:

  • Explicit reference to the reporting of a workplace injury or illness as grounds for the action.
  • If the violation of a workplace safety rule is not applied uniformly to all employees who violate the rule, OSHA may infer an impermissible action via circumstantial evidence of unequal treatment.
  • Employer rules about the time, place, or manner for reporting an illness or injury must have a legitimate business reason or OSHA may infer that it was used as a pretext.
  • Relevant factors considered by OSHA in evaluating a legitimate business reason for a rule include:
    • The reasonableness of the rule
    • Whether the employee had a reasonable basis for the deviation
    • Whether the employer has a substantial interest in the rule and its enforcement
    • Whether the discipline imposed appears proportionate to the employer’s interest in the rule

DRUG & ALCOHOL TESTING
An employer is allowed to drug test employees who report work-related injuries or illnesses, so long as they have an objectively reasonable basis for testing, which is determined by:

  1. Whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.
  2. Whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness.
  3. Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the injury or illness occurred.
  4. Whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.
    • At this time, OSHA will only consider this factor for tests that measure alcohol use, not other drugs.

INCENTIVES
Section 1904.35(b)(1)(iv) does not prohibit an Employer from utilizing safety incentive programs.  Instead, this section prohibits an Employer from taking an adverse action against Employees for reporting work-related injuries or illnesses.  The important distinction here is that an employer can reward employees for complying with legitimate safety rules or participation in safety-related activities, however an employer cannot deny a reward to employees simply because someone suffered a work-related injury.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.