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Managing Risk for Your Contracts Part 2

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In part one of this two-part series, the Jacksonville construction attorneys at Cotney Construction Law discussed the challenges of managing risks when under contract. We discussed two types of unexpected events that can greatly alter a contractor’s ability to meet the terms of their contract — tariffs and catastrophic weather.

Now, we will discuss why a cookie-cutter provision, like force majeure, may not be enough to save you from a breach of contract. In addition, we will recommend solutions for contractors dealing with owners who are resistant to contract price increases. Remember, for all of your construction-related legal needs, including contract negotiation, drafting, and review, consult a Jacksonville construction attorney.

The Limitations of Force Majeure

As we discussed in part one, unexpected events are oftentimes at the root of payment disputes in the construction industry. Naturally, when forces outside of your control affect your ability to complete a project, you don’t necessarily feel responsible for shouldering the additional burden and costs that come as a result. One solution is the implementation of a “force majeure” clause, which, in theory, covers unforeseeable circumstances that limit one party’s ability to fulfill the terms of a contract. Unfortunately, this isn’t a foolproof provision.

Contractors shouldn’t rely solely on a force majeure clause to cover themselves in the event of unexpected contractual complications. To avoid disputes, the contractor and owner should agree to pricing assumptions and clarifications in the event of increased material and labor costs. Our Jacksonville construction lawyers can help draft these provisions to clearly outline which party is responsible for what costs in the event of tariffs or catastrophic weather. These terms and provisions can be utilized to set a price ceiling that accounts for unexpected events, effectively giving the owner a guaranteed maximum price for the defined scope of work.

Being Upfront About Risk

Risk management is most effective when taking a proactive approach as opposed to a reactive approach. Upfront negotiation between the contractor and owner can help smooth out a broad range of potential risks, especially those involving cost allocations for unexpected events. Essentially, the contract should clearly identify the types of events that warrant an equitable adjustment of time and cost. If an unexpected event occurs and it meets the established criteria, both parties will know which actions are necessary to maintain compliance with the contract. You can also include guidelines and benchmarks to help clarify the types of time and cost adjustments that should be made in the event of tariffs, bad weather, or other external factors.

Another strategy involves an agreement between the contractor and owner in which the owner can suspend work for the duration of time when project-related costs are elevated. However, the owner should still compensate the contractor for costs related to the suspension. You should review all contract provisions with a Jacksonville construction attorney and verify that the owner is cognizant of how these terms will affect the contract. By being upfront with the owner, you can avoid disputes arising from material price increases, labor shortages, project schedule impacts, and more.

If you would like to speak with one of our Jacksonville construction 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.

Although contracts are undoubtedly the lifeblood of the construction industry, their somewhat rigid nature means that they can’t always account for every event that arises during the project timeline. There’s plenty of external factors that can affect your ability to meet the terms of your contract, and it’s imperative that contractors gauge these factors and work with a Jacksonville construction lawyer to draft contracts that ably manage a broad range of risks.

When you violate your contract — whether it be a missed deadline, defective work, or something else entirely — there’s a strong possibility that a dispute is on the horizon. Nobody wants to clash with an owner, but when you fail to manage contractual risks, you’re opening yourself up to a litany of potential legal issues. From the moment you align with an owner for the improvement of real property, our Jacksonville construction lawyers can assist you with negotiating, drafting, and reviewing your contract. The extra level of oversight our Jacksonville construction lawyers contribute to contracts help you avoid costly disputes and preserve relationships with owners. In this two-part series, we will detail the steps you can take to manage risk for your contracts.

Unexpected Material Cost Increases from Tariffs

When you sign off on a contract, you factor in an array of expenses, including material costs, but what happens when material costs change part way through the project? Recently, steel and other construction material tariffs have affected the price of projects. Ongoing construction projects that take years to complete can be hit with steep material cost increases unexpectedly when tariffs are involved. Considering the fact that a tariff can be established at the president’s discretion through the use of an executive order, building trades and owners can have their expectations subverted at a moment’s notice as material costs increase dramatically. Naturally, your contract may not account for this risk.

Weathering the Effects of a Storm

Nobody can control the weather, but you can control the terms of your contract to manage risks related to rain, sleet, and snow. Bad weather can cause the price of materials to rise, effect delivery schedules, and increase the market price of labor. Your workforce may be sidelined for days or even weeks if catastrophic weather strikes your project site, and it may be impossible to work within the proposed budget once you fall behind schedule and account for material cost increases. If you don’t consult a Jacksonville construction lawyer before drafting your contract, bad weather could lead to project delays, potential liquidated damages, and claims.

In part two of this two-part series, our Jacksonville construction lawyers will discuss the limitations of force majeure provisions and how contractors can reach an amicable solution with owners who don’t want to exceed the original proposed contract price.

If you would like to speak with a Jacksonville 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.

In part one of this two-part series, the Orlando construction attorneys at Cotney Construction discussed the revised the definition of “epilepsy” established by the International League Against Epilepsy (ILAE) and the International Bureau for Epilepsy. We also detailed some of the concerns contractors have about employing workers with epilepsy and dispelled the notion that workers with epilepsy can’t work in high-risk fields. Now, we will provide tips for contractors who want to ensure they are minimizing risk and maintaining compliance with federal laws.

Compliance with Federal Laws

The primary federal law governing employment opportunities for people with medical conditions is the Americans with Disabilities Act (ADA). The Equal Employment Opportunity Commission (EEOC) enforces the private employment section of the ADA. As we mentioned in part one, employers cannot exclude employees from work unless they pose a “direct threat” to their safety or the safety of others. Determining direct threats should be handled on a case-by-case basis. Contractors can assign a project manager to oversee a worker’s performance and verify whether or not they are able to perform the essential functions needed to complete the job safely.

To maintain compliance with the ADA and avoid a potential legal dispute, contractors must be able to identify the particular risk presented by the worker with epilepsy.  Therefore, objective evidence or a “reasonable medical judgment that relies on the most current medical knowledge” is required to exclude a worker.

Determining Risk

If you believe an individual is a direct threat, you should be able to identify the level of potential harm the person could cause, the duration of the risk, the likelihood for risk, and the imminence of potential harm. Consult an Orlando construction attorney before you make any employment-related decisions involving individuals with disabilities. If an individual feels that you have treated them unfairly or denied them the opportunity to work based solely on their medical history, you could find yourself paying up to $75,000 in penalties.

Workers with epilepsy can be valuable additions to your workforce. Most people with epilepsy live normal lives and only suffer from seizures on rare occasions. Epilepsy doesn’t prevent a person from being capable and able-bodied on the project site and you shouldn’t let it prevent you from adding a new asset to your workforce. For more information about employment law and employees with disabilities, consult an Orlando construction attorney from Cotney Construction Law.

If you would like to speak with one of our Orlando construction 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.

In 2014, the International League Against Epilepsy (ILAE) and the International Bureau for Epilepsy revised the definition of “epilepsy” to help society obtain a more precise understanding of what the disease is and what conditions must be met for a person to qualify as having epilepsy. This revision, which came over one hundred years after scientists “noticed the electric changes in the brain during experimentally induced seizures, associating epileptic attacks with abnormal electric discharges” shows that even today, many people fail to recognize what epilepsy is and how it affects daily life for those who have it.

In this two-part series, the Orlando construction lawyers at Cotney Construction Law will discuss epilepsy and how it relates to workers in the construction industry. As an employer, it’s imperative that you understand the rights of workers with epilepsy under the Americans with Disabilities Act (ADA) and take the proper actions to support these workers. For assistance with ADA compliance on your project site, consult an Orlando construction lawyer.

Defining Epilepsy

According to the ILAE, a person has epilepsy if they:

  1. Experience two or more unprovoked (or reflex) seizures more than 24 hours apart.
  2. Experience one unprovoked (or reflex) seizure and have a 60 percent recurrence risk after two unprovoked seizures over the following decade.
  3. Are diagnosed with epilepsy syndrome.

Therefore, having a seizure and having epilepsy are drastically different. The ILAE defines an epilpetic seizure as “a transient occurrence of signs and/or symptoms due to abnormal excessive or synchronous neuronal activity in the brain.” A person with epilepsy suffers from recurrent unprovoked seizures, whereas a person who experiences a seizure may not experience another seizure ever again. The nature of this disease can create a lot of hesitancy for contractors, who might fear that a sudden, unprovoked seizure will lead to an accident on the project site with little to no warning.

Working with Epilepsy

Although epilepsy can hinder an employee’s work performance on the project site, it doesn’t mean they should be excluded from working in their field. Many people with this disease are employed in similarly high-risk occupations, including:

  • Police Officer
  • Firefighter
  • Welder
  • Butcher

Epilepsy is a “highly variable disorder,” which makes it challenging to pinpoint its precise effect on an employee’s work performance. Many people with epilepsy are licensed to drive and can perform physical activities at a high level. Under the ADA, employers are barred from excluding employees for safety reasons unless specific and timely medical documentation indicates that the person in question poses a “direct threat” to the health and safety of themselves or other workers.

Now that we have developed a better understanding of epilepsy, we will outline tips for dealing with this disease and maintaining compliance with federal laws in part two.

If you would like to speak with an Orlando 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.

A decade may seem like a long time, but it may not be long enough for Florida contractors to avoid liability for latent construction defects. In this brief article, a Ft. Myers construction defect attorney will be discussing the nuances of recent changes to the Florida statute of repose laws. If you are ever forced to defend yourself from a latent construction defect claim, do so with the aid of an aggressive Ft. Myers construction defect lawyer from Cotney Construction Law.

Under Prior Florida Law

Florida Statute 95.11 (3)(c) sets forth guidelines for how property owners and contractors should handle the discovery of patent and latent construction defects. When we covered this topic previously, the statute of repose was 10 years from the date that owners take possession of the property, the certificate of occupancy is issued, the project is abandoned, or when the project is completed or terminated. This meant that a lawsuit pertaining to a construction defect could not be asserted after a period of 10 years.

Current Statute of Repose Laws

A 2018 amendment to Florida Statute 95.11 (3)(c) extends the statute of repose period beyond the previous 10-year deadline for certain circumstances. The statute now states that “counterclaims, cross-claims, and third-party claims that arise out of the conduct, transaction, or occurrence set out or attempted to be set out in a pleading may be commenced up to 1 year after the pleading to which such claims relate is served, even if such claims would otherwise be time barred.”

The above could extend the period for which a contractor can be held liable for a construction defect far beyond a decade, especially if other parties get involved or claimants follow pre-suit procedures before filing a lawsuit or demanding arbitration. There’s no telling how long a contractor can be swept up in proceedings when you take into account the fact that involved parties often agree to extend deadlines to allow time for an investigation, negotiations, and remedial work.

Partner with a Professional

With the above law in place, it is more important than ever that contractors in the Sunshine State protect themselves from litigious owners and outrageous claims. A construction firm may not be capable of contributing the time, manpower, and resources necessary to address a latent construction defect. Cash flow issues and even bankruptcy can hound a construction firm that isn’t prepared to defend themselves in and out of court. Partner with a Ft. Myers construction defect attorney to ensure that your rights are always protected in the event of a construction defect claim.

If you would like to speak with a Ft. Myers construction defect 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.

A lightning strike can destroy electrical equipment, ignite flammable materials, and pose a serious risk to any worker caught outside during a thunderstorm. In part one of this series, Florida construction attorneys discussed how construction firms can prepare in advance for a storm. Now, we will look at what employers and their employees should do during and after a thunderstorm. Thunderstorms are among the most overlooked hazards that can befall a construction project. Partner with an experienced Florida construction attorney to ensure that your legal rights are never overlooked.

When a Storm Hits

As soon as your workers hear thunder, even distant thunder, they should seek shelter. This shelter should be fully enclosed and feature wiring and plumbing. Sheds, pavilions, tents, and porches are not adequate shelters.  If proper shelter is not available, the next best thing would be a hard-topped metal vehicle with the windows up. Corded phones should not be used during a thunderstorm.

Be aware, there simply is no way to guarantee a worker’s safety if they do not seek shelter. If a worker is caught outside during a thunderstorm, they should take care to avoid the following:

  • Tall objects
  • Open areas
  • Puddles and bodies of water
  • Metal objects

If someone on your jobsite is struck by lightning, you should contact emergency services immediately. Wait for any risk of injury to pass before assisting. If the individual is unconscious and not breathing properly, use an automated external defibrillator (AED) or administer CPR if an AED is not available. Contact your insurance company and consult with a Florida construction attorney as soon as possible.   

After a Storm

Whether taking shelter in a vehicle or enclosed shelter, all workers should remain sheltered for a minimum of 30 minutes after hearing the last crack of thunder. Lightning can strike up to 10 miles away from rainfall, and construction workers can find themselves the victim of a lightning strike by venturing outdoors prematurely.

As stipulated by the Occupational Safety and Health (OSH) Act of 1970, an employer must provide their employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

Obviously, a lightning strike can cause death or serious physical harm. A construction firm that does not protect their workforce from inclement weather could leave themselves vulnerable to a personal injury lawsuit or an investigation and subsequent fines from the Occupational Safety and Health Administration (OSHA). Consult with a Florida construction attorney at Cotney Construction Law to ensure that you are protected from the aforementioned conflicts.

If you would like to speak with one of our Florida construction 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.

Contractors have a plethora of concerns to juggle in order to keep their jobsites safe and productive. One of the most dangerous and least controllable elements on a construction site is the weather. Thunderstorms can be particularly deadly for construction personnel that are unprepared for lightning strikes. In this two-part series, a Florida construction lawyer at Cotney Construction Law will detail what your workforce should do before, during, and after a thunderstorm. If you believe your workers are in danger of injury, consult with one of our Florida construction lawyers.

Construction Sites at Risk

Thunderstorm preparedness is vital in Florida, where many of the nations most lightning-prone cities are located. Construction sites are particularly vulnerable. The high elevation of looming steel structures, cranes, and boom lifts commonly found on project sites can attract lightning during a storm. Metal materials and equipment can become deadly hazards when struck by lightning.

Lightning Preparedness

Lightning is unpredictable. Your safety measures shouldn’t be. As stipulated by the Occupational Safety and Health Administration (OSHA) in 29 CFR 1910.38 and 29 CFR 1926.35, employers must have a written and easily accessible Emergency Action Plan (EAP) that covers the procedures that should be followed in the event of a thunderstorm, lightning strike, or another emergency. All employees should be familiar with and competently trained in the procedures detailed in this plan. The EAP should include the following information:

  • The actions to be taken when a thunderstorm approaches
  • How to communicate warnings to workers
  • When workers should seek shelter
  • Shelter locations and the time needed to reach them

Check the Weather

Always monitor radio, television, and internet weather reports prior to and while working outdoors. Dark clouds and increasingly strong winds are a sign that a thunderstorm is brewing and that your workers should seek shelter. The American Red Cross states that a severe thunderstorm warning indicates an “immediate danger to life and property.” Don’t risk the lives of your workers or the success of your project by failing to heed obvious warnings. Failure to protect your workers from a thunderstorm could result in a preventable injury or fatality under your watch.

For more information on staying safe during a thunderstorm, please read part two.

If you would like to speak with a Florida 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.

Construction firms can find themselves paying increasingly costly taxes when their former employees are approved for unemployment benefits. In part one of this two-part article, we discussed how construction firms are adversely affected by unemployment claims. Now, a Hillsborough County construction lawyer will discuss when a construction firm should accept or contest an unemployment claim determination. As we’ll see, numerous factors go into making this decision, and sometimes the choice isn’t clear cut. Partner with the attorneys at Cotney Construction Law to ensure that your company makes the right choices regarding the legal challenges it may be facing.

When to Accept an Unemployment Claim

When an employee has a legitimate claim for unemployment benefits, it’s best that you don’t contest the determination. An employee’s claim is legitimate if they were laid off due to a company being in the wrong, lacking work, or having a financial setback. Once you’ve responded to the Notice of Claim Filed, no additional steps need to be taken on your part. While this choice may seem unfavorable, the State of Florida may still decide to reject a former employee’s unemployment claim.

When to Contest an Unemployment Claim

Unemployment claims that are unfounded can be successfully contested once an adverse determination has been reached. A determination may be successfully appealed for a number of reasons, including but not limited to if the former employee:

  • Was an independent contractor
  • Was fired for misconduct
  • Quit without good cause
  • Included false information in the claim

Employers wishing to file an appeal should still respond to the Notice of Claim Filed within 20 days to preserve their rights. In the State of Florida, you have 20 days from the date that the determination is mailed to appeal the decision.

Hire a Professional

There are a number of factors that must be taken into account before deciding how to handle an unemployment claim, especially when it comes to independent contractors. A former worker that you believe to be an independent contractor may be determined to be an employee in court. An approved claim may trigger a number of other former “independent contractors” to file unemployment claims of their own.

As we’ve covered previously, misclassifying a worker can result in severe penalties. With the possibility of a financial pitfall awaiting employers who fail to take action, your company must know how to respond to claim notices. To ensure that you are always prepared to face unemployment claims, partner with the Hillsborough County construction lawyers at Cotney Construction Law.   

If you would like to speak with a Hillsborough County 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.

Construction companies know that they have to reduce costs wherever they can to survive in this competitive industry. Accomplishing this goal can become difficult when a former employee files for unemployment benefits that raise your insurance costs. In this two-part article, a Central FL construction lawyer will detail what construction firms should do when faced with an unemployment claim. The Central FL construction lawyers at Cotney Construction Law are always here to help whenever your company is facing a trying legal decision.

What Is an Unemployment Claim?

An unemployment claim is a plea that a former employee can make to the state government to receive temporary funds while they actively search for new employment. In order to qualify for unemployment benefits, an employee must have been laid off through no fault of their own. In Florida, an employee may still be eligible for benefits if they were either let go for performance issues or quit due to illness, disability, or a good personal reason.

How Unemployment Claims Impact Construction Firms

When a former employee’s unemployment claim is approved by the State of Florida, your company ultimately pays for it. Unemployment benefits are funded through your reemployment taxes, which are paid to the Florida Unemployment Compensation Trust Fund. You will be paying more in taxes as a direct result of your former employees being approved for unemployment benefits. Higher tax rates could easily cost employers tens of thousands of dollars a year. Employers who wish to keep their tax rates low will need to be on the lookout for claim determinations that should be appealed.

Receiving a Notice of Claim Filed

If you’re reading this article, chances are you’ve received a Notice of Claim Filed. In addition to notifying you that a former employee has applied for unemployment benefits, this notice requests information regarding the claimant’s work history. The claim may also be investigated through writing, online, or over the phone. In order to protect your tax rate, it is imperative that you promptly, completely, and honestly respond to these requests for information. This will ensure that you are in the best position possible if you wish to contest an adverse determination. As we’ll see in part two, deciding to accept or contest an unemployment claim determination is a decision with potentially far-reaching legal and monetary consequences. For expert advice on how to reduce and address unemployment claims, consult with a Central FL construction lawyer at Cotney Construction Law.

For more information on contesting unemployment claims, read part two.

If you would like to speak with one of our Central FL construction lawyers, 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.

Some employers deliberately withhold earnings from their workforce. Others do it accidentally. Regardless of their intentions, if an employer violates federal wage and hour laws, an employee has the right to contact a Tampa wage and hour attorney.

In the first part of this article, we covered employers that claim that they didn’t know the laws, that they don’t have the resources in place to account for employees paid time, or that the employee waived their rights by signing a contract. In this part, we will provide you with three more common excuses employers make that they claim justifies why they don’t properly compensate their employees.

4) It’s Common in the Industry

There are some industries out there that have a great deal of corruption, especially when it comes to violating wage and hour laws. For example, a restaurant owner may have a perspective that, in order to stay competitive, they need to mirror the management approach of rival restaurants by not paying workers overtime. This doesn’t justify the employer violating the law. Just because other businesses may be “getting away with it,” a violation of federal law is still a violation. Although businesses must always be mindful of their bottom line, they must also comply with federal wage and hour laws.  

5) It’s Part of the Job

Many employers have a set of expectations for their hourly workers that are simply unreasonable in nature. Moreover, they are breaking the law in the process. If part of a server’s work responsibilities include setting up every morning and cleaning the entire restaurant every evening before they can go home, this is understandable. However, they should be compensated for every minute they are performing work tasks. If the server needs to arrive to work an hour before the restaurant opens, their shift begins at the time they arrive and ends when they leave.   

6) Nobody Said Anything Before

Many employers will take their workforce’s silence as proof that what they are doing isn’t all that bad. All of a sudden, when an employee speaks up, they will act shocked by the accusation of owing unpaid wages. There are several reasons why employees may not make a complaint, including fear of losing their job. Just because no worker voiced their concerns in the past doesn’t mean that the employer wasn’t in the wrong before. It’s common for other workers to voice their complaints after one employee has already done so.

If you would like to speak with one of our Tampa wage and hour 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.