Construction Season
Jun 26, 2019

LEAD STORY

Around Chicago we have two seasons: winter and construction.  This week, as much of the world turns to France to watch their national teams compete for the FIFA Women’s World Cup 2019, we kick off summer in the U.S. with a closer look at construction news heading your way.

 

PROMOTION

Nevada lawmakers passed legislation that will change the substantive and procedural rules for construction defect claims in the Silver State. As of October 1, homeowners can now allege construction defects in “reasonable” detail when submitting a notice to a builder. The previous law required “specific” detail with “exact” locations.  Homeowners now have 10 years after the work was finished to pursue a claim.  The previous rules allowed for 6 years.  This measure was largely supported by the legal community and rolled back provisions of the more homebuilder-favored law passed in 2015.

 

RELEGATION

Earlier this session, the Illinois General Assembly sought to amend the Wage Payment and Collection Act to make prime contractors liable for any wage debt owed a subcontractor on a project.  The amendment would have extended to payroll and fringe benefits.  The measure, which was rejected by the State Senate, would have placed a heavy additional risk onto general contractors and construction managers, likely increasing the cost of construction across the state.  We’ll keep an eye out for this measure in 2020.

 

VERIFYING ROSTERS

The Pennsylvania House of Representatives passed a measure that would require construction companies to run new hires through a federal background check system that verifies whether applicants can legally work in the United States.  Under the bill, employers who skip the E-Verify step and hire unauthorized workers would be forced to terminate them and send reports on new hires to the state’s labor department.  The House bill does not specifically require employers to retroactively check existing employees, but does call for a complaint process that would investigate an employee’s immigration status. A version of the bill is pending in the Senate chamber. Governor Tom Wolf has yet to say whether he would veto the measure.

 

RED CARDS

And finally this week, the United States House of Representatives passed a “minibus” appropriations bill that includes fiscal year 2020 funding for OSHA, NIOSH, and the Mine Safety and Health Administration.  The bill allocates more than $660.9 million for OSHA – around $103 million more than the Trump administration’s proposed budget for the work safety agency.  The measure is by no means a direct kick. The GOP controlled Senate is expected to craft its own funding bill or may try to resolve any differences with the House bill in a conference committee later this summer. We’ll be tracking the funding bill’s downfield progress.

 

Traffic Safety

FATALITIES ON THE ROADS

2018 ranked as the third-deadliest of the previous decade on America’s roadways, according to The National Highway Traffic Safety Administration.  NHTSA reports that 36,750 people were killed in the U.S. in traffic crashes in 2018.  This is down 1% from 2017.  However, fatalities in crashes involving at least one large truck increased by 3% in last year.  Most regions across the country saw a decrease in traffic fatalities, with the largest percentage decrease being seen in the upper Midwest—Minnesota, Wisconsin, Illinois, Indiana, Michigan, and Ohio, which saw a 5% decrease year-over-year. New England, on the other hand, witnessed the largest year-over-year increase (4%) in traffic fatalities.

 

EPIDEMIC FIGURES

Of particular note, the report calls out near-epidemic levels of accidents involving pedestrians and bicyclists.  Pedestrian deaths hit a 28-year high in 2018.   Pedestrian and pedal-cyclist fatalities increased by 4% and 10%, respectively.  NHTSA credits a rise in urban population centers for the growing trend of pedestrian accidents.

 

Making Our Way Around the Country

FLORIDA

A state appeals court rejected a constitutional challenge to Florida’s workers’ compensation insurance laws.  The 1st District Court of Appeal issued a 14-page decision on the issue of whether an “expert medical adviser’s (EMA)” opinion related to surgical authorization violates due process.  The court ruled that, the claimant’s due process argument is that the presumption of EMA’s “correctness” was too strong. Since the court found that the EMA’s presumption can be rebutted, and is permitted elsewhere in the law, this provision of the state’s workers’ compensation act does not violation the constitution.

 

OKLAHOMA

The Oklahoma Supreme Court ruled that intentional torts by an employer can be subject to direct liability and an injured worker’s rights may not be limited to the workers' compensation scheme or jurisdiction.  In the case at bar, the wife of a deceased worker alleged that her husband’s employer willfully, wantonly, and intentionally exposed him to lethal workplace conditions and her remedy was not limited to those benefits provided by the Oklahoma Workers' Compensation Act.  The state’s high court remanded the matter to the trial court to allow the deceased's estate to specifically plead its case.

 

HEALTH CARE

The United States Supreme Court agreed to hear an appeal from health insurance companies who say the federal government owes them $12 billion from losses sustained under the Affordable Care Act.  The cases involve one of the Affordable Care Act's three risk mitigation programs that were designed to shield insurers from losses, which incentivized them to participate in the individual exchanges in 2014.  The case will be heard this term, and pundits suggest the ruling could pave the way for more significant health care litigation round these risk corridors.   

 

THE BEAUTIFUL GAME

Teams from around the world are competing this month in France to take home the 2019 FIFA Women’s World Cup.  And for some players on the United States Women’s National Team (USWNT), their toughest competition extends outside the lines.  In 2016, several U.S. women’s players filed a discrimination complaint with the Equal Employment Opportunity Commission.  In March, a much larger group of USWNT players filed a lawsuit against the U.S. Soccer Federation (USSF) for gender discrimination and unequal pay.  News outlets are reporting that the USSF and the USWNT have tentatively agreed to pursue mediation after the World Cup.  We’re watching for the outcome of these pitched battles, on the pitch and off.  

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