Another Missouri Pay-If-Paid Clause decision

While Missouri appellate have found such provision enforceable, the Missouri Court of Appeals for the Eastern District found such a provision ambiguous in Lobo Painting, Inc. v. Lamb Construction Co., 231 S.W. 3d 256 (Mo. Ct. App. 2007). Which means the careful wording of such provisions are a must!

Subcontractor Can not recover in Quantum Meruit in Missouri

County Asphalt Paving Co., Inc. v. Mosley Construction, Inc., 239 S.W.3d 704 (Mo.Ct. App. 2007) reaffirmed the long standing position in Missouri that an owner who has paid the general contractor is not liable for a claim of quantum meruit by a subcontractor.

All contracts to be performed in Kansas must be litigated in Kansas?

Note the last paragraph [subsection (e)]of the revised K.S.A. 16-121. Does this mean all disputes arising out of contracts to be performed in Kansas must be litigated in Kansas?

Kansas law on indemnification: Update

NOTE THE INDEMNIFICATION PROVISIONS UNDER K.S.A. 16-201 HAVE BEEN SUBSTANTIALLY CHANGED. PLEASE CONTACT YOUR LOCAL KANSAS ATTORNEY FOR AN UPDATED INTREPRETATION OF THIS IMPORTANT PROVISION!

Is the Construction recession in Missouri over?

According to my roving reporter Kate Whitby of Spencer Fane Britt & Browne, LLP, the U.S. Commerce Department is reporting construction rose by 8.2% in April, due primarily to apartment construction. [Single family home construction continue to weaken].

Hope is on the way!!!?

New Missouri Immigration Law and Misclassification of Employees

Just so everyone knows every employer with FIVE or more employees must file 1099 with the Department of Revenue of Missouri......and if you misclassified an employee as an independent contractor will be fine $50 a day up to $50,000!

New Missouri Immigration Legislation

IMMIGRATION – CCR SS HCS HB 1549, 1771, 1395 & 2366 (

Missouri

)

The immigration legislation, HB 1549, 1771, 13954 & 2366, contains a number of new requirements.  The non-employment provisions contained in the bill are:

• The Missouri State Highway Patrol will have officers authorized to enforce federal immigration law through a memorandum of understanding with the U.S. Department of Homeland Security.
• The legislation prohibits any municipality from enacting ‘sanctuary’ policies in relation to illegal immigrants.
• The legislation prohibits public benefits from being disseminated to illegal aliens.  Applicants for public assistance must present proof of lawful status.
• The legislation prohibits the state from issuing a driver’s license to an illegal alien.
• The legislation does not permit an illegal alien to bond out of jail if they are arrested.

Employment related changes to

Missouri

law included in the legislation:

• Requires all employers of five or more employees to submit federal 1099 miscellaneous forms to the state department of revenue. 
• Prohibits an employer, who has or had a minimum of five (5) workers who apparently have performed public works while in that employer’s employment, from knowingly misclassifying a worker as an independent contractor rather than an employee.  Penalties range up to a maximum of $50,000.
• Prohibits an employer from knowingly hiring or continuing to employ an illegal alien. 
• Any contractor with a state contract worth more than $5.000 must participate in the federal work authorization program (E-verify) as a condition of receiving the state contract. 
• The language appears to require every General Contractor and Subcontractor on every project – not just public projects – to have language in their contracts and also obtain a sworn affidavit from each direct lower tier subcontractor attesting that all employees are lawfully present in the U.S. in order to avoid liability if an employer is found to have knowingly hired an illegal alien.
• If an employer is found not to have knowingly employed an illegal alien, the employer must terminate the employment.  If an employer is found to have knowingly hired an illegal alien, that employer will have all of their business licenses suspended for a minimum of 14 days up to a maximum of “forever” suspending the license for repeat offenses. 
• In addition to license suspension, an employer found to have knowingly hired illegal aliens may be debarred from state contracts for a minimum of three years to a maximum of “permanent” debarment for repeat offenses.
• Requires OSHA 10 hour training for all on-site employees.  Penalties include a forfeiture of $2,500 plus $100 per employee per day for violations.

A number of concerns have been raised about the new laws.  Concerns which have been expressed include:

• On the surface, the legislation appears to be susceptible to a constitutional challenge.  Other organizations have mentioned the possibility of a lawsuit.  Future discussion might be considered regarding the potential of a lawsuit.
• The state Attorney General can investigate misclassification of employees if it “appears” the law was violated or if the Attorney General “believes it to be in the public interest that an investigation should be made”.  Concerns were expressed regarding the potential for misuse of this investigative power by unfriendly attorney generals.
• The state Attorney General can utilize state statutes to force testimony during an investigation of misclassification, even if that testimony might conflict with the generally accepted constitutional right against self incrimination.  Concerns have been expressed that the state could potentially misuse this process to “fish” for violations, gather evidence and then seek separate prosecution.
• The required contract language and sworn affidavit from all lower tier contractors appears to apply in all construction settings, not just on public works projects.
• The state immigration law requires termination of individuals reported to be illegal aliens.  While the statute contains immunity from state level employment lawsuits, the legislation does not prevent an employer from being sued in federal court.
• The OSHA 10 hour legislation requires the state department of labor to investigate “any” claim of violation.  While other sections of the legislation have language dealing with frivolous complaints, the OSHA 10 hour law does not contain any prohibition or procedure on frivolous complaints.

Missouri Release of Performance Bonds Required

An interest case for consideration on the differences between performance bond versus a warranty bond:

"At issue here is a performance or completion bond, not a warranty bond. A performance bond protects obligee by obligating the surety to cover any extra costs obligee may incur to complete project if principal defaults." As to compliance issues, record supported award in Contractor's favor against Sub-Contractors, including costs of testing. Contract did not release Sub-Contractors from liability. Homeowners Association was not entitled to damages for repair, nor to attorney fees because it did not prevail.
Essex Contracting, Inc. and Federal Insurance Company, Appellants v. Jefferson County, Missouri, et al., Respondents, Patrick J. Acheson, et al., Intervenors/Respondents, J. H. Berra Paving Co., Inc., Respondent/Cross-Appellant, Boling Concrete Const., Inc., Respondent/Cross-Appellant. Missouri Court of Appeals Eastern District

New Statistics From the EEOC Demonstrate that Workplace Discrimination Claims Continue to Soar . . .

New Statistics From the EEOC Demonstrate that Workplace Discrimination Claims Continue to Soar . . .

The latest annual statistics on discrimination charges filed with the Equal Employment Opportunity Commission (“EEOC”), the federal agency that enforces Title

VII

, suggest that discrimination claims are alive and well in the workplace. All forms of Title

VII

discrimination rose between 2006 and 2007.

TRENDS IN EEOC CHARGES	Number of Cases: 2006	Number of Cases: 2007	% Change
Race	27,238	30,510	+12%
Retaliation	22,555	26,663	+18%
Sex	23,247	24,826	+7%
Age	16,548	19,103	+15%
Disability	15,575	17,734	+14%
National Origin	8,327	9,396	+12%

In 2007, charges of racial bias rose 12% from 2006 (30,000+ cases in 2007), to their highest level in 13 years.  Because race claims are the most common, they are the types of claims company executives need to be most vigilant about. Moreover, as the American workforce absorbs more immigrants, preventing racial discrimination lawsuits is going to require even greater vigilance.

If you have questions, concerns, or have received notification that a current or former employee has filed a Charge of Discrimination, then

Jane

 

Bruer

, an Employment Lawyer with Spencer Fane Britt & Browne, can help.  You can find

Jane

’s contact information at: http://www.spencerfane.com/Attorney/SJane-Bruer.htm