Unit pricing and other confidential information contained within your bid documents may be recognized as a trade secret under Ohio’s Uniform Trade Secret Act and similar federal laws. What does that mean? In simple terms, it means that even on a public project subject to applicable public records laws, contractors can prevent disclosure of their trade secrets to the world, including their competitors.
Hahn Loeser’s Construction Team is a proud leader in a major victory for Ohio contractors and their sureties. The Fifth District Court of Appeals of Ohio issued a recent decision confirming that Ohio’s construction statute of repose, R.C. 2305.131, applies to breach of contract claims. It also confirmed that sureties are entitled to rely on the statute of repose as a defense to claims under the bond.
Steel and other construction material tariffs necessitate careful evaluation and allocation of project cost and schedule risks. For example, when steel costs increased suddenly based solely on presidential executive orders, the building trades and owners saw drastic increases in costs, shop drawing review times and delivery dates. In many instances, contract documents failed to account for such risks.
Another factor that can significantly increase the price of material, and even the market price for labor, include catastrophic weather events. When bad weather occurs, contractors may no longer be able to obtain the material at originally budgeted pricing, or secure necessary labor forces to perform the work. Labor and material shortages domino into project delays, potential liquidated damages and claims.
Chambers USA: America’s Leading Lawyers for Business, the nation’s most widely used legal services rankings guide, has ranked the highly touted Hahn Loeser Construction Law Team in its 2019 edition. This ranking is a recognition of the quality of the team’s attorneys and the team’s capabilities and effectiveness. Construction clients describe the team as “strong, courteous and respectful.” A client also added “They have a resource expert for nearly every situation we encounter.”
While electronic funds transfer is considered a convenient and quicker way to process payments and receive funds on construction projects, this practice presents significant risk to project participants. Contractual and processing controls are necessary to prevent fraud, which is on the rise locally and nationally.
On March 27, 2019, Home Builders Association of Greater Cleveland President Dean Tompkins and HBA members Josh Edgell and Aaron Evenchik testified in front of Euclid City Council regarding potential residential home construction in the City. Euclid Councilperson Kristian Jarosz asked the HBA to assist the City in evaluating a 2003 law that required all new residential construction be a minimum of 2,000 square feet. The City is concerned the law is preventing new development, especially as much of the existing housing stock is less than 2,000 square feet. HBA members agreed the 2,000 square foot minimum is an impediment to new construction in Euclid.
On Feb. 1, 2019, the Occupational Safety and Health Review Commission (OSHRC) reversed an OSHA citation issued to Suncor Energy (U.S.A.) Inc., as the controlling employer, for a fall protection violation. In this ruling, the OSHRC found that as a controlling employer, Suncor was not liable for two main reasons. First, it had a robust safety program in place that not only met, but exceeded OSHA’s minimum standards. Second, it had a rigid enforcement program that removed employees from the worksite for a single violation of its fall protection safety procedures. This decision emphasizes that a controlling employer’s safety role is secondary. The OSHRC then concluded that, given the massive scope of the project, Suncor’s robust safety program, and its zealous enforcement efforts, there was insufficient evidence to support a citation.
On Feb. 28 the Occupational Safety and Health Review Commission (OSHRC) reversed a citation issued to A.H. Sturgill Roofing, Inc. for the heat-related death of an employee, finding that all of the elements of proof of the violation had not been met by the Secretary of Labor. Sturgill’s citation was for a general duty clause violation for exposing its employee “to the hazard of excessive heat from working on a commercial roof in the direct sun.”[i] In response to this ruling, the way employers defend against heat-related OSHA citations for violations of the general duty clause may change.
A draft bill provided to the Ohio legislature from Governor Mike DeWine aimed at addressing Ohio’s transportation infrastructure funding problem is in the works. The Ohio Contractors Association is actively promoting awareness of this development to its membership, which includes important information on the bill’s likely impact on the industry. For full details, click here.
Hahn Loeser is involved in a construction fatality where the Cleveland OSHA office’s compliance officer wanted to use a drone to fly over the site to photograph and videotape the site and the equipment involved in the fatality. OSHA agreed to share the drone footage with the employers involved in the OSHA investigation. This request came as part of OSHA’s new inspection procedure.
On May 11, 2018, OSHA’s Director of Enforcement Programs issued a memorandum to all of the OSHA Regional Administrators addressing the use of Unmanned Aircraft Systems (DRONES) as a method for OSHA to collect evidence during inspections.
Currently, the OSHA compliance memorandum requires OSHA to obtain express consent from the employer prior to using any drone on an OSHA inspection. However, we predict OSHA will seek an expanded use of drones for inspections and compliance in the future.