Our last post provoked an inquiry about what impact, if any, after-hours or off-day use of a BlackBerry^® or another personal digital assistant might have with respect to employees whom an employer treats as exempt under one of the federal Fair Labor Standards Act’s executive, administrative, or professional exemptions.  The U.S. Labor Department’s exemption regulations for these so-called “white collar” employees require that most such employees be paid on a “salary basis” in order to be exempt.  This is where the problem might arise.

Being paid on a “salary basis” means that the exempt employee regularly receives each pay period a predetermined amount of compensation which is not subject to reduction because of variations in the quality or quantity of the employee’s work.  Subject only to a limited, specific set of exceptions, an exempt employee must receive the full salary for every workweek in which he or she performs any work, without regard to the number of days or hours worked.  To illustrate the potential consequences of PDA use, let’s consider just three of the more-common exceptions to the “no-docking” rule:

•   Proportional deductions may be made for absences of one or more full days when the employee performs no work due to personal reasons other than sickness or disability;

•   Proportional deductions may be made for absences of one or more full days when the employee performs no work due to sickness, accident, or disability when the employee has not yet qualified for benefits under an employer’s bona fide sick-pay plan, policy, or practice and when the employee has exhausted those benefits; and

•   An employee who performs no work in a workweek need not be paid the salary for that workweek.

The Labor Department has been known to apply the FLSA’s “hours worked” principles in evaluating whether an exempt employee has or has not performed work on a day so as to preclude or permit a deduction from his or her salary on account of the employee’s absence from the job that day.  Moreover, its Office of Enforcement Policy has said that no salary deduction could be made for a day when an employee called in sick but spent a half-hour reviewing files at home that day.

So, if using a BlackBerry^® or other PDA for job-related purposes is often “work” (though possibly it would sometimes be de minimis), and if an exempt “white collar” employee engages in such activities during a personal-day off, during a sick-day off, or during a vacation week, can he or she be said to have taken a full day off, or to have performed no work in a workweek?

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A police officer has sued the City of Chicago (on behalf of himself and others) seeking pay for time spent dealing with work-related phone calls, voice-mails, e-mails, text messages, and work orders via BlackBerry^® devices and similar “personal digital assistants”.  The officer contends that these activities entitle the group to an award of overtime compensation under the federal Fair Labor Standards Act.

The potential for these claims has been lurking for a while now, and the relevant FLSA principles are not new.  What has changed is this:  The explosion of 24/7 electronic communication has increased the frequency with which, and has expanded the circumstances in which, non-exempt employees perform after-hours and/or off-premises work.  Join this with the strict requirements of a 70-year-old law that was designed in and for a bygone era, and you have the recipe for a lawsuit extravaganza.

The question is not whether these activities are compensable FLSA “hours worked” for a non-exempt employee – they are.  However, conventional wisdom leads some to think that things like writing a text message or listening to a voice-mail involve too little time to worry with.  But the truth is that this so-called “de minimis” concept is perilously vague, ill-defined, and unpredictable under the FLSA.  No particular timeframe is necessarily small enough to be reliably considered de minimis, and in any event the per-occurrence amount of time is not all that the courts take into account.  Other considerations can include such things as:

•   The aggregate amount of an individual’s time spent in these activities;

•   The aggregate amount of time spent by all of the individuals making claims;

•   The regularity of the activities;

•   Whether and to what extent capturing the time creates a substantial administrative burden and practical difficulty; and/or

•   Properly balancing FLSA policy favoring paying employees for even small amounts of time against the increased burden and difficulty of doing this.

Instead of hoping for a de minimis finding, the legally-preferable approach is to require a non-exempt employee to keep an accurate record of the time spent in the work.  This might be done, for example, on a special form designed for this purpose.  The employee then submits this record so that the activities can be counted along with his or her other work in order to compute the employee’s wages.

Alternatively, cases and U.S. Labor Department interpretations dealing with analogous situations might arguably support developing a reasonable estimate of how long these activities take each day.  The employer would then reach an agreement or understanding with employees in advance as to how much time it will add to their hours worked to account for handling these duties.  Even so, it remains to be seen how the courts will react to this approach, and basing pay upon anything other than the actual facts always increases uncertainty for the employer.

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We previously posted about the U.S. Labor Department’s Administrator Interpretation saying that unionized employers cannot exclude time spent donning and doffing certain protective equipment from compensable “hours worked,” even if an applicable union contract or practice treats the time as unpaid.  On August 2, 2010, the Seventh Circuit U.S. Court of Appeals held that unionized workers at a Kraft Foods plant could sue under Wisconsin state law for wages relating to their time spent donning and doffing certain safety gear and other items at work.  They made their claim even though Kraft and the union had earlier agreed that this time would be non-compensable under the federal Fair Labor Standards Act’s Section 203(o).  Spoerle v. Kraft Foods Global, Inc., 16 W.H. Cases2d (BNA) 711 (7th Cir. 2010).

Before reaching that conclusion, the court said that the workers had no FLSA claim in light of the agreement between Kraft and the union.  The workers argued that Section 203(o) did not permit the union/employer agreement, contending that “protective gear is not ‘clothing’ under 203(o).”  The Court of Appeals said that this argument “is a loser for the reasons given in Sepulveda v. Allen Family Foods, Inc., 591 F.3d 209 (4th Cir. 2009).  We agree with Sepulveda and need not repeat its analysis.”

The Court’s August 2 decision does not mention the June 3 Administrator Interpretation (which specifically criticized Sepulveda‘s rationale).  Whether the Seventh Circuit’s decision should be taken as a rejection of the Administrator Interpretation is unclear, but it is tempting to see it that way.  In stating what was to be resolved on appeal, the Court described a limited question:  “[W]hether Section 203(o) preempts state law that lacks an equivalent exception.”  Given that narrow issue, the Court need not have said much (or perhaps anything) about the workers’ separate argument that “protective gear is not ‘clothing’ under 203(o).”  Nevertheless, the Court did mention that argument, emphatically called it “a loser,” and then went even farther by applauding the Sepulveda decision.  Was the Court not-so-subtly calling the Administrator Interpretation on this point “a loser” too?

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A U.S. contractor managing more than $1 billion in reconstruction contracts in Afghanistan faces federal criminal and civil investigations of claims that it overcharged the government for work, according to federal court documents.

The U.S. Environmental Protection Agency (EPA) has released the Sustainable Design and Green Building Toolkit for Local Governments, which offers a guided assessment of codes and ordinances as they relate to green building practices.

The Palmetto State, just as the majority of states in the country, requires motorists to carry Bodily Injury Liability and Property Damage Liability in order to operate a vehicle legally; also required is Uninsured Motorist coverage. The current SC car insurance liability limits required are $25,000 for bodily injury to one person, $50,000 for bodily injury per accident and $25,000 for property damage. Higher limits may be purchased to help cover losses that exceed these amounts and may help a motorist avoid having to pay for expenses due to another party on one’s own.

Failure to maintain South Carolina auto insurance can result in stiff penalties and there are many instances when the state will require a resident to prove that a policy is in effect. At the time that a resident obtains a driver’s license and at renewal, proof of coverage must be submitted prior to issuance. This may be waived if the applicant does not own an automobile or there is no vehicle at the household of the resident. Proof of vehicle coverage will also be needed when an automobile is being registered or registration is being renewed. Once provided to the Department of Motor Vehicles (DMV), the department will verify coverage electronically and if policies cannot be verified, the resident’s driver’s license and registration may be suspended.

Individuals that are stopped by South Carolina law enforcement may also be required to provide proof of car insurance at the request of the officer. Inability to furnish the necessary documentation may result in the issuance of a citation and be subject to a fine or imprisonment. If a citation has been issued, the motorist will need to prove that the vehicle was insured at the time that it was being driven to avoid the suspension of driving privileges. Proof will need to be provided within 30 days of the time the citation was issued.

Additionally, at the scene of an accident, the state’s laws require the investigating officer to issue a Notice of Requirement (Form FR-10). Issuance of this form will require that the motorists involved provide proof that a liability policy was in effect when the traffic accident occurred. This form must be submitted within 15 days and failure to comply can result in suspension of driving and/or registration privileges.

Additional Info About SC Car Insurance

The state also requires that South Carolina insurers report to the DMV as well. If a liability car insurance policy has be canceled, the provider must submit a Notice of Cancellation of Policy (Form FR-4) to the department of motor vehicles. Once this from is received by the department it is then forwarded to the owner, at which point there are two options; either update coverage information or surrender vehicle plates and registration. Failing not to provide the requested documentation will result in the suspension of a driver’s license and vehicle plate/registration. In order to have these privileges reinstated, a reinstatement of up to $400 will need to be paid and proof of coverage will need to be submitted.

Residents of SC have an option other than purchasing the required coverage. According to the South Carolina Department of Consumer Affairs eligible motorists may be able to pay an annual $550 Uninsured Motorist Fee to the Department of Public Safety at the time of registration. Although this option is available, one must be aware that this is not a form of auto insurance and will not pay for any expenses arising from a traffic accident and as an uninsured motorist, being at fault may leave the  responsible driver for compensating the other party for any bodily injury and/or property damage that has been caused as a result of the accident. It may be wise to carefully consider this option prior to making the decision to drive uninsured.

Rigger William Rapetti was acquitted in July of all criminal charges against him in connection with the deadly collapse of a tower crane in New York City on March 15, 2008. However, with both of his licenses taken away, he says it has been difficult “to get my life back.”

Construction is scheduled to begin this fall on a center conceived by the late Senator Edward Kennedy to teach students about the inner workings of government.

The Savannah College of Art and Design (SCAD), which has a notable track record in historic preservation, has picked a like-minded designer to head its architecture program.

Turner Construction Co., New York City, is looking to put $333 million back on its books after it won a bid protest regarding a new 745,000-sq-ft hospital planned for Fort Benning, Ga.

Unfortunately many individuals occupy the roads without having a policy in place. This is not only illegal but can lead to fines, suspension of driving privileges and even lawsuits if they cause an accident. Many of these drivers believe that they simply cannot afford the state’s minimum coverage requirements and risk driving uninsured. By comparing several companies a person should be able to find affordable protection, for those who cannot there may be an alternative.

State programs such as the California Low Cost Automobile Insurance Program have been developed and made available to motorists to help residents. These programs were introduced to help keep uninsured drivers off of the roadways and help motorists obtain affordable coverage to help them drive legally and also have a way to pay for any injuries and damages that they may cause with their automobile.

Some state program’s limits of liability of the program are lower than that of the required minimum if purchased on one’s own. One should compare rates of policies with the state’s requirements with that of the program’s cost and see if they are comparable. Consumers may be able to afford more protection and avoid future financial burden stemming from an accident. There are certain eligibility requirements by state and one should contact their state’s Department of Insurance for full details regarding the program.

There are many companies that offer new customers the option to start up a policy with little to nothing down and pay monthly for their coverage. One should be aware that “no down payment” means that there are no surcharges or fees involved in becoming insured, only the first month’s payment is needed to begin the terms of the policy. It would be impossible for insurers to stay in business if they were not to charge a premium for coverage.

With many providers that can offer each driver a different type of option such as, up front start up costs, length of term ( usually 3, 6, or 12 months ), and of course the cost of the total premium, the best way for an individual to find the right carrier is to shop around.

While comparison shopping, consumers will quickly realize just how much differently terms and prices can vary with each company and applicant. In order to find the right monthly payment, one should take the time to compare insurers, their rates, types of coverage and length of the term in order to find what’s right for their situation. Government tools such as the New Jersey auto insurance Purchasing Planner can be extremely helpful when shopping for coverage.

The state of Florida does not license or regulate those calling themselves a handyman. Therefore a handyman is only permitted to perform minor repairs and cannot legally perform any of the work previously mentioned that requires a license.

When a handyman expands their efforts from minor repairs to structural repairs or other work they are not authorized to do, they are entering the area of unlicensed activity and are subject to prosecution. Unlicensed activity is a misdemeanor for the first offense and becomes a felony upon the second offense.

Chapter 444 of the Hawaii Revised Statutes (HRS) requires that a licensed contractor be hired for any construction work which is more than $1,000 or for which a building permit is required. This contractor is considered the responsible and liable party of record for the construction described in the permit.

Property owners who are building or improving their own home or business site, however, can register as an Owner-Builder with their county building department. This exempts owners from the requirements to be licensed as contractors, yet still allows them to obtain building permits.

In order to protect and inform consumers about the legal consequences of being an Owner-Builder, the law requires that each applicant must sign a Disclosure Statement provided by the county building departments. This page discusses some of the major responsibilities and potential liabilities of being an Owner- Builder.

“It is unlawful for a person, firm, partnership, corporation, association or other organization, or a combination of any of them to engage in the business, or act or offer to act in the capacity, or purport to have the capacity of a contractor, without having his own license in good standing in his own name therefore as provided in this chapter. Evidence of securing a permit from a governmental agency or the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract”.

What this means is a contractor must have a current and active license, showing he or she is qualified to perform the type of work required, before he or she can even bid on a project. Violation of this statute is a class 1 misdemeanor. There are exemptions to these licensing requirements listed under Chapter 10, Title A.R.S. §32-1121, however most of the exemptions do not effect the consumer directly. The most frequently claimed exemption to the licensing requirements is that of the “handyman”.

The statute allows individuals who perform minor repairs or installations to do so without being licensed. To qualify for this exemption two conditions must be met: The work does not require a local building permit, The total cost of the project, including labor, materials and all other items does not exceed one thousand ($1,000.00) dollars. As used in the statute, the term “total cost of the project” does not refer strictly to the work of the handyman. As an example, a “handyman” cannot build a brick fireplace for $1,000.00 in a ten thousand-dollar addition to a home.

The “total” cost of the project would be considered as $ 11,000.00. In such cases, the “handyman” would be required to be a licensed contractor. As another example, a “handyman” installing the same fireplace in an existing home for $ 1,000.00 would still need to be licensed, if a local building permit was required to perform the work. The reason for these licensing requirements is to protect the health, welfare and public safety and to promote quality construction in Arizona. Under Title §32-1165, it is also a class 1 misdemeanor for any person to advertise that he or she is able to perform any service or contract for compensation subject to the regulation by the registrar under the terms of the chapter, unless a license is first obtained, regardless of whether his operations as a contractor are otherwise exempt.

The advertising requirements of the statute does not prevent anyone from placing an ad in the yellow pages, on business cards, or on flyers. What it does require under A.R.S. §32-1121A14(c), is that the advertising party, if not properly licensed as a contractor, disclose that fact on any form of advertising to the public by including the words “not a licensed contractor” in the advertisement.

Again, this requirement is intended to make sure that the consumer is made aware of the unlicensed status of the individual or company. Contractors who advertise and do not disclose their unlicensed status are not eligible for the handyman’s exception.

Employers soon will be held to a higher level of accountability regarding construction cranes. Do you have any thoughts on this? Leave a comment…

A plan to enlarge the only surviving synagogue by Louis Kahn has sparked opposition among some preservationists, who call the alterations insensitive. Do you have a comment on this post? Leave a message below.

Police in Chorley, Staffordshire has recovered GBP300,000 worth of plant machinery, thanks to TRACKER. Police on the trail of a stolen vehicle, used its fitted TRACKER device to follow the signal to a remote farm, which led to the discovery of a haul of machinery.

Carrying heavy buckets of water to somewhere without a tap, or inaccessible for a hosepipe, is tiring and back-breaking work. Water isn’t always within reach on a construction site.  The H2Go Bag is an ingenious way of transporting up to 80L / 19 Gallons of water in a wheel barrel. Any thoughts or experience with this? Leave a comment below.

Barbour ABI have recently released their quarterly review analysis, which highlights key building projects and the best performing sectors. Barbour ABI reports on every new building project in the UK, enhancing planning application and public tender information at each stage. Any comments on this? Leave a message…

Trimble has announced today that a SITECH Technology Dealer has been established to serve contractors in Florida, Georgia and Alabama. SITECH South East joins the network of SITECH dealerships – the first fully dedicated global distribution network offering the most comprehensive options.

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The GBP100 million Highways Service Partnership, which is scheduled to commence on 1 October 2010, is initially for 10 years with the option of a five-year extension. Balfour Beatty has announced that Balfour Beatty WorkPlace has signed the Southampton Highways Service Partnership.

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Frankley water treatment works, one of Severn Trent Water’s major water treatment works in Birmingham, supplies water to around 1.4 million people in Birmingham and the surrounding area, making it a major piece of national infrastructure and a vital asset for Severn Trent Water.
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With its more stringent criteria than other schemes, BES 6001 is increasingly becoming the UK standard for responsible sourcing. In less than a year since the first certificate was awarded, over twenty are now held covering aggregates, cement, bricks, reinforcing bar, and mortars.

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Interbuild Onsite will provide a clear focus for exhibitors and visitors this year, thanks to the creation of six specific new zones dedicated to important product and business areas for the building trades.

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