LEGAL ISSUES IN PUBLIC WORKS EMPLOYMENT LAW ISSUES

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 �A is a Disability? 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 QUESTIONS � Don’t do it � POST-OFFER QUESTIONS � Only MEDICAL EXAMS AND if all new hires are required � POST-EMPLOYEE QUESTIONS � Only MEDICAL EXAMS AND 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. 2 d 109 (Mo. App. W. D. 1995).

SOVERIGN/GOVERNMENTAL/QUALIFIED IMMUNITY � � � � � Kerr Construction Paving Company, Inc. v. Khazin, 961 S. W. 2 d 75 (Mo. App. W. D. 1997). Independence & Mo. DOT entered into reimbursement agreement to pave/rebuild road. Mo. DOT 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. 2 d 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 3 rd 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. 2 d 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. 2 d 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, Rutland/Architects, Inc. v. Montgomery County Board of Education, 559 So. 2 d 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. 2 d 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 limit � Claim is for $600, 000 � Cost of defense $1, 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 illconsidered engagements” [*neglectful, reckless, careless, unmindful]

STATE REQUIREMENTS § 107. 170 RSMO – PAYMENT BOND � public works > $50 K � 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 IMPLEMENTATION 10. 02 Unauthorized Changes in the Work A. 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 IMPLEMENTATION 11. 01 Change of Contract Price B. 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 IMPLEMENTATION 11. 05 Dispute Resolution A. 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: � KS: Act Prompt Pay Act Fairness in Public Construction Contract

ISSUES IN CONTRACT IMPLEMENTATION � 30 Days to Pay

ISSUES IN CONTRACT IMPLEMENTATION � “egregious, unwarranted, overbearing, reprehensible, and without justification”

THANK YOU! � Saskia Jacobse � saskia. jacobse@kcmo. org � Mark Jones � mark. jones@kcmo. org � Nelson Muñoz � nelson. munoz@kcmo. org � Katie Chandler � katherine. chandler@kcmo. org