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When a subcontractor is having trouble completing its subcontract work, it is not uncommon for a contractor to assert itself more directly into the completion process to help expedite the work. What’s the harm you might ask? A recent Loudoun County, Virginia case answered that question: It could lead to tortious interference with contract and conspiracy claims by the subcontractor. That case was Evans Construction Services (the subcontractor) versus Ox Builders (the contractor), and it also included a claim by the subcontractor against the contractor’s site superintendent, Lawler, as a co-defendant in the case individually. Evans alleged that Ox and Lawler tortuously interfered with Evan’s subcontracts by dealing directly with the subcontractors and directing the subcontractors’ work, cutting Evans out of the picture. Evans sought to recover its lost profits. Ox and Lawler argued against liability because Evans’ claims sought redress outside of Evans’ subcontracts with Ox and because Evans had no contract with Lawler at all, moving to dismiss Evans’ lawsuit as a matter of law. The court denied that motion, holding that the facts as pled by Evans were legally sufficient if ultimately proven by Evans, to support a claim for breach of legal duties separate from duties arising contractually only; and specifically for wrongful interference with Evans’ subcontracts and Evans’ related conspiracy claim against the defendants. Although the court acknowledged that Evans’ claims were interrelated with the Ox – Evans subcontracts underlying the parties’ relationship, those common facts could support both contractual and non-contractual breach claims in certain circumstances. The court further determined that such circumstances, if ultimately proven, included Evans’ claims that Ox and Lawler violated their independent common law duties to not interfere with Evans’ lower tier subcontracts and not conspire together to injure Evans in its business. The court, therefore, allowed Evans’ claims to proceed to trial on their merits. The defendants apparently did not argue to dismiss the conspiracy claim on the basis Lawler, as an employee of Ox, could not conspire with Ox, his employer (referred to as the intercorporate immunity doctrine), or at least that defense was not discussed in the court’s decision. But, regardless, this decision reflects the necessity for caution “going around” subcontractors when subcontract disputes arise. Author: Neil S. Lowenstein Source: https://vanblacklaw.com/construction/contractor-takeover-leads-to-tortious-interference-with-contract-and-conspiracy-claims/

In the construction industry, where multiple companies working closely together abound and where it is more difficult to monitor employee behavior because many employees are in the field, more incidents of inappropriate behavior occur. Texas and California, two states opposite politically and in law making, have instituted legislation expanding sex harassment protections for employees in the workplace that go even further than federal protections. Indeed, both laws have similarities. Texas and California Similarities In Texas , as of September 1, 2021, under expanded protections against sexual harassment, individuals in management and companies that have even only one employee can be held liable. In the construction industry, this expansion could sweep many subcontractors and tradesmen under the new law. The new law will challenge the definition of who is a manager. In California, under the 2019 law, an employer may be liable for acts of nonemployees concerning any type of harassment (not just sex harassment) against employees and other nonemployees working as interns or volunteers and service contractors. In Texas, the new law increases the time limit to file a sex harassment charge from 180 days to 300 days, making it consistent with federal law. Similarly, in California, an employee has up to 10 years to file a civil action for sexual assault or attempted sexual assault, or within three years after an employee discovers an injury or illness as a result of the assault or attempted assault, whichever is later. In Texas, instead of requiring supervisors to “take prompt remedial measures,” individual liability will hang on whether supervisors “knew or should have known” about the sex harassment in the workplace. The new law also requires “immediate and appropriate corrective action.” Certainly, the standard of “knew or should have known” will be case-specific and fact-intensive, making it difficult to dismiss cases before they reach trial. In California, recent amendments to the Fair Employment and Housing Act have made it easier for employees to prevail in sex harassment actions. They also lowered the employee’s burden and standard of proof.  Implications What does this mean for employers of all sizes? More frequent training, updating sex harassment policies and employee handbooks, expansion of human resources departments to respond more quickly to complaints, and a closer evaluation of what constitutes a managerial position are required. In California, recent legislation requires training for even the smallest of employers (a minimum of five employees). As of January 2020, California imposed minimum time requirements for the length of such training for supervisors and other employees. To be sure, in the multi-employer setting, companies also may need to verify that other companies they work alongside have sex harassment policies, that they conduct periodic training, and that their employee handbooks have been updated to comply with the law. Author: Victor N. Corpuz Source: https://www.jacksonlewis.com/publication/new-sex-harassment-laws-making-strange-bedfellows-construction-industry

During an Occupational Safety and Health Administration (OSHA) inspection, the OSHA official, escorted by management, will tour the facility or construction site to observe working conditions, identify violations, and so on.

As part of the Biden-Harris administration's interagency effort and commitment to workplace safety, climate resilience, and environmental justice, the department's Occupational Safety and Health Administration is initiating enhanced measures to protect workers better in hot environments and reduce the dangers of exposure to ambient heat. To combat the hazards associated with extreme heat exposure – both indoors and outdoors – the White House, on September 22 nd announced an enhanced and expanded efforts the U.S. Department of Labor is taking to address heat-related illnesses. While heat illness is largely preventable and commonly under-reported, thousands of workers are sickened each year by workplace heat exposure. Despite widespread under-reporting, 43 workers died from heat illness in 2019, and at least 2,410 others suffered serious injuries and illnesses. The Atlantic Council's Adrienne Arsht-Rockefeller Foundation Resilience Center estimates the economic loss from heat to be at least $100 billion annually – a number that could double by 2030 and quintuple by 2050 under a higher emissions scenario. What is the initiative? To highlight its concern and take necessary steps, OSHA is implementing an enforcement initiative on heat-related hazards, developing a National Emphasis Program on heat inspections, and launching a rulemaking process to develop a workplace heat standard. In addition, the agency is forming a National Advisory Committee on Occupational Safety and Health Heat Injury and Illness Prevention Work Group to provide a better understanding of challenges and to identify and share best practices to protect workers. OSHA implemented an intervention and enforcement initiative recently to prevent and protect workers from heat-related illnesses and deaths while they are working in hazardous hot environments. The newly established initiative prioritizes heat-related interventions and inspections of work activities on days when the heat index exceeds 80 degrees Fahrenheit. Scope of the initiative: The initiative applies to both indoor and outdoor worksites. Indoor worksites that may be impacted by extreme heat include foundries, brick-firing, and ceramic plants, glass production facilities, rubber products factories, electrical utilities (particularly boiler rooms), bakeries, confectioneries, commercial kitchens, laundries, food canneries, warehouses without adequate climate control, chemical plants, and smelters. Outdoor work activities that may cause exposure to extreme heat include agriculture, landscaping, construction operations, refining gas/oil and well operations, asbestos and lead removal, waste collection activities, package and mail delivery, and any other activities that require moderate to high physical exertions or the wearing of heavy or bulky clothing or equipment on a hot day. According to Jim Frederick, Acting Assistant Secretary for Occupational Safety and Health, usually agricultural and construction workers often come to mind first when thinking about workers most exposed to heat hazards. However, without proper safety actions, sun protection, and climate control, intense heat can be injurious to various workers indoors or outdoors and during any season. Heat-related directives: OSHA Area Directors across the nation will institute the following: Prioritize inspections of heat-related complaints, referrals, and employer-reported illnesses and initiate an onsite investigation where possible. Instruct compliance safety and health officers, during their travels to job sites, to conduct an intervention (providing the agency's heat poster/wallet card, discuss the importance of easy access to cool water, cooling areas, and acclimatization) or opening an inspection when they observe employees performing strenuous work in hot conditions. Expand the scope of other inspections to address heat-related hazards where worksite conditions or other evidence indicates these hazards may be present. In October 2021, OSHA will take an important step toward a federal heat standard to safeguard protections in workplaces across the country by issuing an Advance Notice of Proposed Rulemaking (ANPRM) on heat injury and illness prevention in outdoor and indoor work settings. The advance notice will initiate a comment period allowing OSHA to gather diverse perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning, exposure monitoring, and strategies to protect workers. How should employers prepare? Employers should be aware of potential citations relating to heat illness and should prepare for inspections by reviewing their procedures and developing a manner to monitor outdoor (and, in certain industries, indoor) temperatures, ensuring employees have access to shade and water. They also need to educate employees on signs of heat illness and provide access to ventilation or cooling areas in their workplace. Once OSHA’s ANPRM is released, employers need to be ready with data and information to identify complexities with compliance. Source : https://www.osha.gov/news/newsreleases/national/09202021

By: Catherine A. Cano, Patricia Anderson Pryor, Tara K. Burke, Courtney M. Malveaux, Cressinda D. Schlag, Leslie A. Stout-Tabackman, and Katharine C. Weber On September 9, 2021, the White House issued Path Out of the Pandemic: President Biden’s COVID-19 Action Plan . The Plan outlines a six-pronged approach, portions of which will impose new obligations on employers across the country. Most notably for employers, the first prong of the Plan, “Vaccinating the Unvaccinated,” includes: Direction to the Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard (ETS) requiring all employers with 100 or more employees to ensure that all employees are fully vaccinated or able to produce a negative COVID-19 test result on at least a weekly basis; A new Executive Order that requires certain government contractors to comply with guidance, to be published later this month by the Safer Federal Workforce Task Force (Task Force Guidance or Guidance), which presumably will require that employees who work on or in connection with certain government contracts be vaccinated, regardless of whether they work on a federal site; A statement that the Centers for Medicare & Medicaid Services (CMS) will be taking action to require COVID-19 vaccination for workers in most health care settings that receive Medicare or Medicaid reimbursement as a condition of Medicare/Medicaid reimbursement (similar to what was previously announced by the President in August 2021 for nursing homes); and Direction to OSHA to require covered employers to provide paid time off for employees to get vaccinated or recover from vaccination. The Plan also calls on states to adopt vaccination requirements for all school employees as part of the effort to “keep schools safely open.” The Plan indicates that the administration will increase the amount of COVID-19 testing by ramping up production of testing products, offering at-home rapid COVID-19 tests at cost through certain retailers, and expanding free testing at retail pharmacy sites, among other things. While the Plan is far-reaching, there are still many unknowns. Employer obligations arising from OSHA’s ETS will be dictated by the timing and the specific ETS provisions and corresponding requirements. The only thing we know for certain about the forthcoming ETS is that employers will need to continue to adapt and be prepared to pivot if necessary. It is also unclear how the new ETS will fit in with OSHA’s current COVID-19 Healthcare ETS, in 29 C.F.R. 1910 Subpart U , or impact OSHA’s current guidance for non-healthcare employers. Further, the 27 states with OSHA-approved State Plans, such as California, Washington, Oregon, and Virginia, will need to determine how to respond to the ETS, once it is issued, and if certain provisions require implementation alongside the state’s standards and regulations. CMS also issued a press release urging Medicare and Medicaid-certified facilities to “make efforts now to get health care staff vaccinated.” However, the agency noted that it is still developing an Interim Final Rule with Comment Period that will be issued in October. Employers who are impacted by the Plan, and who may be impacted by an ETS once issued, are advised to start thinking through how they will navigate many legal issues and operational challenges related to required vaccination and testing. These issues include policy requirements, workplace testing strategies, vaccination tracking and management, medical record collection and retention, and accommodations for religion, disability, and pregnancy, as well as wage and hour implications, bargaining obligations for unionized workplaces, employee confidentiality, and privacy issues. Further, employers should consider the logistical impact on federal contracts and how these obligations will interplay with other state or local mandates or restrictions on vaccinations. Article source: https://www.jacksonlewis.com/publication/president-s-path-out-pandemic-adds-hurdles-employers

The Occupational Safety and Health Administration (OSHA) updated its COVID-19 guidance for non-healthcare employers, Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, on August 13, 2021

Collecting and making sure that Certificates of Insurance (COIs) are accurate and up-to-date is an enormous task, especially when you do not have tools to streamline this process. On top of this, checking to make sure you are not receiving fake insurance certificates is difficult. Here are a few best practices to follow when checking the authenticity of a COI. 1. Look for “Acord 25” The most common insurance certificate used by trustworthy insurance agencies is Acord 25. A real Acord form will have the Acord logo in the upper right-hand corner and the text “Acord 25” in the bottom left-hand corner. If the words “Acord 25” cannot be found in these places on the form, that is a red flag that this is not a legitimate insurance certificate. 2. Look for Consistent Handwriting & Font Looking at the expiration dates on insurance certificates you receive is a good place to check for fraud. If the dates are not in the center of the box or if they are in a different font than the policy number, there is a good chance the COI is a fake. Keep a lookout for anything handwritten or in a font that does not match the rest of your form. This is a good indicator of a fake insurance certificate. 3. Call the Insurance Company & Make Sure They are Legitimate If you have a bad feeling about a COI, you receive, call the insurance company that issued it. If the company does not answer or if the agent you get in contact with does not want to talk to you or seems hesitant, this is a red flag. If you do not recognize the insurance company listed in the upper right of the certificate, call your insurance agent to make sure they are a legitimate company. AMBest.com is also a good place to check the status of an insurance company. Use their “ratings and analysis” section to look up the insurance company in question and see if they are legitimate. 4. Understand the Layout The layout of COIs is complex, and somebody creating a fake likely will not know how to fill out the form. Look for these sections in Acord 25 forms: General liability Worker’s compensation Automobile liability These are common types of coverage you can expect to see on most forms. If you see coverage like Cyber Liability, make sure this coverage is part of the insurance policy. If there is coverage listed in the COI that you cannot find in the insurance policy, the COI is probably a fake. It is also important to look out for things like zeroes, N/A, or None listed when there is coverage not included in the policy that is present on the COI. On an actual proof of insurance certificate, these boxes will be left blank to state the limit. 5. Make Sure the Insured Box is Filled Out Correctly The name in the insured box on an insurance certificate should be the name of the business, not a person’s name. The business address should also be in the box. It is important to check this section when looking for a fake COI because if an inexperienced person filled out the form, they will probably put their name in this section. Another important reason to check this box is to make sure coverage is afforded in the case of a real insurance certificate. If the name in the box is not correct, coverage may not apply when a claim is made. 6. Look for the Right Contact Information The contact information on an insurance certificate should be the information of the insurance agent or broker who issued the form. If this information is instead for the person who is covered by the certificate, they probably filled out the form on their own. The signature at the bottom of the certificate should also match the name in the contact information box. Lastly, the email domain in the contact information should match the name of the Producer of the certificate, that is the name of the insurance company. If any of this information seems off, do a quick search online to make sure the person who created the COI works for the Producer or call them to confirm. If you are unsure of how to identify a fake COI and keep track of your contractor’s insurance policies, check out FIRST , VERIFY’s COI Management web application . Find out how we can help you reduce the risk associated with fake policies and increase compliance at all times.

Every entrepreneur and business leader are looking to grab any technology-driven advantage they can as they adapt to new ways of working, managing employees, and serving customers. At the same time, they are trying to manage risk — and the same digital initiatives that create new opportunities can also lead to risks such as security breaches, regulatory compliance failures, and other setbacks. The result is an ongoing conflict between the need to innovate and the need to mitigate risk. Mitigating risks is one of the most important jobs that management has to deal with on daily basis. With efficient and smart use of the technology of today, the everyday risks of the business can be greatly reduced. Here are a few ways that technology can help mitigate risks: Security: Security is an extremely important aspect of a business this is because almost all businesses have sensitive information and failure to keep them secure could result in disastrous events if the wrong people get their hands on it. Losing a file from the cabinet, or a floppy disc, or even a stolen laptop containing crucial information can make the owners go berserk.  But now, thanks to technology, it is ensured that only relevant and right people can access the information they need. Now there are unique passwords and codes to keep sensitive information safe. Even facial recognition can prevent the theft of data leading to operational risks. Technology has made it tough for wrongdoers to indulge in malicious behavior. The fear of being tracked and getting caught is pervading. Access: Access is another facet that is often misused and is easily hacked. Some people need to have instant access to important information so that crucial decisions can be made right away. These decisions affect the well-being of the company. This access needs to be limited to certain members of the management team only as they are responsible for carrying out the smooth operations of the business. Numerous software and cloud-based technology allow the management to access real-time information right away from anywhere. The technology ensures that all the information is monitored tightly. Profit Loss: Generating sales and making profits is the main goal of a business that holds the entire process together. With the usage of robust technology systems, the areas of concern can be properly focused on. Using the right technological solutions in office management software as well as other activities allows businesses to know where the resources and finance are being utilized and a proper picture of profit and loss can be attained. Irregularities in record-keeping indicate fraudulent activities by vendors, employees, or both. Efficient Use of Time: Time is an important element in every walk of life. And when important business decisions have to be made, time becomes paramount. That's why a business demands that all of the employees use their time productively for organizational growth. A profitable business asks its employees to direct their talents and energies into tasks that bring something to the business. The right kind of technological solution will act as a watchdog to monitor transparency within the business operations, process streamlining, and efficient use of employee energy. Expense Management: Businesses have to follow a budget closely so to maximize their profits. They cannot be callous about cost and follow the saying- 'a penny saved, is a penny earned'. When there is no communication between departments or lack of proper filing, paperwork, or recordkeeping mistakes can occur resulting in false numbers; with the help of technology like using an asset management system, the process goes out without a hitch giving clarity on how much expenses are occurring and where. All organizations face uncertainty. The effect this uncertainty has on an organization's objectives is referred to as "risk." The challenge for management is to determine how much uncertainty or risk to accept and how to manage it to an acceptable level. Technology has been a blessing for all. It monitors, reviews, guards any loss of data, unnecessary expenses, false information, and a myriad of other aspects. Technology not only finds the culprits in case of wrongdoing harming a business, but it also allows any issues to be identified early and address them immediately. FIRST, VERIFY is a one stop solution for companies across industries to mitigate risk be helping develop and execute a strong risk mitigation strategy and a robust technological solution. Read more about our risk mitigation services here .

As COVID-19 restrictions continue to relax, manufacturers are facing an ever-tightening labor market. Amidst supply-chain disruptions and computer chip shortages, human capital is proving to be increasingly scarce. Many manufacturers are struggling to fill open positions.