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LEGAL ISSUES IN PUBLIC WORKS
EMPLOYMENT LAW ISSUES
Family and Medical Leave Act Americans with Disabilities Act DO’s and DO NOT’s of Disciplining
Employees
EMPLOYMENT LAW ISSUES
FAMILY AND MEDICAL LEAVE ACT Protects employees who need leave to
deal with the employee’s own serious medical condition, or the serious medical condition of a close relative
Provides up to 12 weeks of unpaid leave with job protection
EXTREMELY Employee-friendly
FAMILY AND MEDICAL LEAVE ACT
Applies to: Employers employing 50 or more
employees for each working day during each of 20 or more calendar workweeks in the current or preceding year
All public agencies are covered employers Employees who worked at least 1,250
hours in the previous year, and have been employed for at least 12 months
FAMILY AND MEDICAL LEAVE ACT
EMPLOYEE RESPONSIBILITIES: Employees must provide a medical
certification from a health care provider at least annually
Employee must notify the employer as soon as the need for Family or Medical Leave is necessary, and must identify that leave to be taken is FML qualifying
FAMILY AND MEDICAL LEAVE ACT
EMPLOYER RESPONSIBILITIES: Notify employee needing leave that the employee may
have a right to take family or medical leave Provide up to 12 weeks of leave Leave may be taken on a continuous or intermittent
basis Leave may be counted on a calendar year or rolling
basis Protect the employee’s position, or restore the employee
to the same position at the conclusion of leave An employer MAY NOT interfere in any way with an
employee’s right to take FML
AMERICANS WITH DISABILITIES ACT
Originally passed in 1990, amended in 2008
Title I of the ADA prohibits discrimination against individuals with disabilities in employment Includes applications for employment
THE ADA
Prohibits Discrimination against employees and applicants based on disability
Prohibits Harassment and retaliation like other discrimination laws
Unlike other laws, the ADA also requires affirmative conduct to provide equal access and equal opportunities
Medical tests
THE ADA – WHO IS COVERED?
QUALIFIED Individual: With a Disability With a record of a disability Who is regarded as having a disability
What is a Disability? A medical condition Substantially limits one or more major life
activities Mitigating measures
THE ADA – WHO IS COVERED?
What is a qualified individual? Qualified for the position Able to perform the essential functions With or without reasonable
accommodations
REASONABLE ACCOMMODATIONS
Any change in the work environment (or in the way things are usually done) to help a person with a disability apply for a job, perform the duties of a job, or enjoy the benefits and privileges of employment.
Examples Accessibility Sign language/computer interpreters Schedule modifications Different position
THE ADA
PRE-EMPLOYMENT MEDICAL EXAMS AND QUESTIONS Don’t do it
POST-OFFER MEDICAL EXAMS AND QUESTIONS Only if all new hires are required
POST-EMPLOYEE MEDICAL EXAMS AND QUESTIONS Only for purposes of reasonable accommodations or
if employee is not performing the job
DISCIPLINING EMPLOYEES
DO: Take employee complaints seriously Conduct a thorough investigation before
disciplining Consider progressive discipline where appropriate Discipline like individuals and like infractions
consistently Meet with the employee with another supervisor
present Document all disciplinary actions,
investigations, and meetings
DISCIPLINING EMPLOYEES
DO NOT: Issue discipline in the heat of the moment without an
investigation Treat similarly situated employees differently Ignore potential problems Issue discipline in front of other employees Retaliate against any employee who may be protecting
his/her rights or the rights of others Discuss employees’ discipline with others who have no
need to know Treat e:mail as a telephone conversation; treat it
as a memo
LIABILITY ISSUES
Sovereign and Qualified Immunity Design Professionals Liability
SOVERIGN/GOVERNMENTAL/QUALIFIED IMMUNITY
Qualified Immunity – protects government employees from personal liability from acts performed within their scope of duties so long as the conduct is reasonable and for a proper purpose. See, Century Management, Inc. v. Spring, 905 S.W.2d 109 (Mo. App. W.D. 1995).
SOVERIGN/GOVERNMENTAL/QUALIFIED IMMUNITY
Kerr Construction Paving Company, Inc. v. Khazin, 961 S.W.2d 75 (Mo. App. W.D. 1997).
Independence & MoDOT entered into reimbursement agreement to pave/rebuild road.
MoDOT retained right to inspect & withhold payment if dissatisfied Independence contracted with Kerr. During progress of work Khazin began to inspect Kerr demanded to know who Khazin was. Reply, “I’m with the state
you dumb SOB.” Kerr demanded Khazin leave and after more exchanges Khazin left
allegedly hitting workers with truck Khazin and supervisor met with City and directed them to stop
payment to Kerr. Court held Khazin and supervisor not protected by qualified
immunity.
DESIGN PROFESSIONAL LIABILITIES
Standard of Care: One who undertakes to render professional services is under a duty to the person for whom the service to be performed to exercise such care, skill and diligence as a person in that profession ordinarily exercise under like circumstances in the same community.
Designer Distinct Roles: Independent Designer Agent/Administrator Quasi-Adjudicator
INDEPENDENT DESIGNER
Duncan v. Mo. Board of Engineers, Architects and Land Surveyors, 744 S.W.2d 524, (Mo. App. E.D. 1988) [One of the Hyatt cases]. Not owner’s agent
Responsibility non-delegable (Missouri, Kansas?)
Owner and Designer disagree on design (safety or other)
As independent agent, designer is liable to 3rd parties not a party to contract
AGENT/ADMINISTRATOR (CONSTRUCTION “OBSERVATION”)
“The design community has yet to develop a fully satisfactory approach to addressing liability.” BRUNER AND O’CONNER ON CONSTRUCTION LAW §17:52
States are split on the interpretation of standard construction phase exculpatory clauses. (No reported cases in either Missouri or Kansas).
AGENT/ADMINISTRATOR (CONSTRUCTION “OBSERVATION”)
Minnesota: Architect was to provide only “general inspection” of construction observation. Architect failed to detect lack of roof fasteners on one side of building. Court ruled in favor of Architect based on contract exculpatory clause stating not responsible for contractor’s work. However, court stated outcome might be different if the Architect was a full-time project representative. Moundsview Independent School Dist. No. 621 v. Buetow & Associates, Inc., 253 N.W. 2d 836 (Minn. 1977).
Mississippi: Owner had to replace roof on a newly constructed building. Roof immediately began to leak. Designer contended it was not liable for contractor’s faulty work by virtue of the exculpatory language in its contract with owner. Designer’s full-time inspector was informed at least three times about roof problems but continued to tell owner that the roof was being properly installed. Court held designer liable. In spite of exculpatory language, designer had an affirmative duty to exercise reasonable care in observing and reporting non-conforming work. Designer also had a duty to employ a competent inspector. U.R.S. Company v. Gulfport-Biloxi Regional Air Authority, 544 So.2d 824 (Miss. 1989).
AGENT/ADMINISTRATOR (CONSTRUCTION “OBSERVATION”)
Alabama: Designer contracted for “general observation services” on a roof project. Contract with owner had typical exculpatory language. Roof leaked soon after completion. Before completion, designer negotiated a solution to problem with contractor but did not inform owner. Court ruled, that under the terms of the contract, designer had , at least, a duty to perform reasonable inspections. Designer failed to inform owner of a defect that the most perfunctory of inspections would have uncovered. Watson, Watson, Rutland/Architects, Inc. v. Montgomery County Board of Education, 559 So.2d 168 (Ala. 1990).
New York: Designer failed to inform owner of construction defects and it compromise remedy with contractor. Designer’s exculpatory language held to simply be recognition that the designer does not guarantee the contractor’s work. The language does not relieve the designer of the duty to inform owner of known defects. Board of Educ. Of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 146 A.D. 2d 190.
AGENT/ADMINISTRATOR (CONSTRUCTION “OBSERVATION”)
Comments: Designers be very wary of full-time inspection In spite of exculpatory language a designer
expected to act with reasonable care Designers always check with risk
manager/attorney/Ins. carrier on full-time inspection contracts (very fact specific)
Owners get what they pay for. Owners be reasonable on full-time inspection fees.
Owners demand explicit “reasonable care “ language in exculpatory clauses
PROFESSIONAL LIABILITY INSURANCE On unusually large, complex or
hazardous projects, consult risk manager/attorney/Ins. Carrier
Policy is a “wasting policy” (aka “pac-man” policy)
Coverage Limits include cost of defense.
PROFESSIONAL LIABILITY INSURANCE Policy has $1,000,000 limit Claim is for $600,000 Cost of defense $1,000,000 Owner loses case Insurance payout $0
STATUTORY REQUIREMENTS: MISSOURI RSMO. § 432.070
Within scope of the City’s powers or authorized by law
Future consideration In writing and dated Executed by authorized parties
KANSAS STATUTE REQUIREMENTS
No counterpart to RSMO § 432.070 “Home rule” Statutes in Kansas
CONTRACT REQUIREMENTS CASE LAW All contracts with a city must be in
writing All contractors “are charged with
notice of that law.” Provisions of Section 432.070 are
mandatory. Contract made in violation of the
statute is void.
CONTRACT REQUIREMENTS CASE LAW Purpose of Section 432.070:
● protect the City and the taxpayers!!!● “prevent extravagant demands”
● “restrain officials from heedless* and ill- considered engagements”[*neglectful, reckless, careless, unmindful]
STATE REQUIREMENTS §107.170 RSMO – PAYMENT BOND
public works > $50K
erection, construction, alteration, repair or improvement of any building, facility, road, street
surety
for all materials and labor
excludes engineers, architects or land surveyors, environmental assessment and artists
ISSUES IN CONTRACT IMPLEMENTATION
ISSUES IN CONTRACT IMPLEMENTATION10.02 Unauthorized Changes in the WorkA. CONTRACTOR shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.17 or in the case of uncovering Work as provided in Paragraph 13.04.
ISSUES IN CONTRACT IMPLEMENTATION11.01 Change of Contract PriceB. The Contract Price may only be changed by a Change Order. Any request for an adjustment in the Contract Price shall be based on written notice delivered within fourteen (14) calendar days after occurrence of the event giving rise to the request …Thereafter, the CONTRACTOR shall submit written documentation of its request, including appropriate supporting documentation, within ten (10) calendar days after giving notice….
ISSUES IN CONTRACT IMPLEMENTATION11.05 Dispute ResolutionA. If CITY and CONTRACTOR are unable to agree on entitlement to, or magnitude of, an equitable adjustment in the Contract Price in accordance with Article 11 within fourteen (14) calendar days from the receipt of supporting documentation of the request pursuant to 11.01.B., … then a Claim for such adjustment may be made pursuant to Article 16.
ISSUES IN CONTRACT IMPLEMENTATION
ISSUES IN CONTRACT IMPLEMENTATION How high? How long? How much $$$?
ISSUES IN CONTRACT IMPLEMENTATION MO: Prompt Pay Act KS: Fairness in Public Construction
Contract Act
ISSUES IN CONTRACT IMPLEMENTATION
30 Days to Pay
ISSUES IN CONTRACT IMPLEMENTATION
“egregious, unwarranted, overbearing, reprehensible, and without justification”
THANK YOU!
Saskia Jacobse [email protected]
Mark Jones [email protected]
Nelson Muñoz [email protected]
Katie Chandler [email protected]