Month: July 2015

Call Miss Utility: Call Who & Why?

Authored by attorney George Nicholos

Prior to excavating on any construction site or most anywhere – Call Miss Utility first!  We have heard the line and seen the words countless times, but what or who exactly is Miss Utility?  And what is the big deal about giving her a call?

Miss Utility of Virginia is a free call center or information exchange for excavators, contractors and property owners planning any excavation or demolition work. Miss Utility doesn’t actually mark the utilities, but coordinates or notifies member utilities and institutions who in turn send out their respective crews to locate and identify various utilities using a standardized color coded marking system. However, once the markings are made care is still required to physically locate the marked utilities as the markings don’t identify the depth of utilities and can deviate as much as two feet horizontally from the actual location of the surface markings.

The name Miss Utility comes from the original advertising campaign in 1971 which rang – “To miss the utilities, call “Miss Utility,” before you dig.” The program was enacted by the Virginia General Assembly to benefit various stakeholders such as utility companies, contractors, excavators and the general public through the prevention of damage to underground utilities. The Underground Utility Damage Prevention Act, sometimes referred to as the “Miss Utility Law” can be found in Title 56 – Chapter 10.3 of the Code of Virginia. The Act also contains Rules which clarifies and further defines the standards. Both the Act and Rules are enforced by the State Corporation Commission and apply to all stakeholders.

To minimize damage to property and the loss of life, stakeholders should always call before digging. In fact, under section 56-265.17 of the Code of Virginia, no person shall make or begin any excavation or demolition without first notifying the notification center for the project area. In fact, failure to do so not only exposes the violator to heightened liabilities and possible catastrophic results, but may also be fined punitive damages in addition to actual damages in an amount up to $10,000 per single cause of action.

So before you dig – Call Miss Utility! Dial 811 in Virginia or Click Here.

Resurgence of Defense Base Act (DBA)

Authored by attorney Lisa L. Thatch

The Defense Base Act is a federal law that extends the Longshore and Harbor Workers’ Compensation Act (LHWCA) to apply to certain categories of employees working overseas. There are three general divisions of covered employees: (1) those working on military bases acquired from a foreign government after 1940, (2) employees of contractors and subcontractors engaged in public work projects for the U.S. government outside the continental United States, and (3) individuals employed outside the continental United States by a U.S. employer whose purpose it is to provide welfare or other such services to the Armed Forces as approved by the secretary of defense.

With much work continuing in war-torn places like Iraq and Afghanistan, the number of Defense Base Act (DBA) claims remains steady, and continues to grow. The DBA covers the following employment activities:

  • Work for private employers on U.S. military bases or on any lands used by the U.S. for military purposes outside of the United States, including those in U.S. Territories and possessions
  • Work on public work contracts with any U.S. government agency, including construction and service contracts in connection with national defense or with war activities outside the United States
  • Work on contracts approved and funded by the U.S. under the Foreign Assistance Act, which among other things provides for cash sale of military equipment, materials, and services to its allies, if the contract is performed outside of the United States
  • Work for American employers providing welfare or similar services outside the United States for the benefit of the Armed Services, e.g. the United Service Organizations (USO)

If any one of the these criteria is met, all employees engaged in such employment are covered under the DBA. As the Employer, you should ensure that you carry appropriate and adequate insurance coverage.

Additionally, please be sure that you understand and adhere to the procedural dictates of the DBA. For example, under the DBA, a company must report any injury or death to OWCP’s Division of Longshore and Harbor Workers’ Compensation within 10 days, and any knowing and willful failure to report subjects the employer to a civil penalty, just as The Sandi Group/Corporate Bank Financial Services discovered not too long ago when it was fined $75,000 by the US DOL for failure to report injuries and death subject to the provisions of the DBA.

You should also be aware of DBA Waivers. Upon the written request of the head of any department or other agency of the United States, the Secretary of Labor may waive the application of the Defense Base Act with respect to any contract, work location, or class of employees. The request for waiver must be made by the government agency to the Department of Labor (DOL), OWCP. It is Department of Labor policy that the waiver does not apply to citizens or legal residents of the U.S. or to employees hired in the U.S. Once granted, the waiver is only valid if alternative workers’ compensation benefits are provided to the waived employees pursuant to applicable local law.

New Minimum Wage Requirements under FAR 52.222-55

Below is a summary of the new minimum wage requirements of FAR Part 52.222-55 prepared by my law partner, Mike Sterling. The new requirements apply to all prime contractors and subcontractors working on new federal contracts after January 1, 2015.

Minimum Wages Under Executive Order 13658

You need to be aware of the new minimum wage requirements of FAR 52.222-55. This clause applies when it is included in a contract or modification by the agency as directed by FAR 22.1906. If the agency fails to include it there is a provision for retroactive application of the clause. FAR 22.1905(d)(4).

FAR 52.222-55 applies to almost all prime contractors and subcontractors working under “new” federal contracts after 1/1/15. The minimum wage is generally not retroactive to “old” contracts. However, it appears that the government views a bilateral modification extending a contract more than 6 months to be a new contact. Likewise, the government may also apply the clause to IDIQ contracts with more than 6 months of task or delivery orders remaining.

If you believe that the agency improperly included the clause you may ask the agency to remove it, but if included you must comply with it.

If FAR 52.222-55 is included you must flow it down to subcontractors at every tier, and if added after award by modification you should take steps to obtain an equitable adjustment for you and your subcontractors. You should not sign a modification that waives your right to an adjustment.

The minimum wage applies to all contractor employees that spend more than 20% of their weekly hours working in “connection” with a federal contract, and regardless of the contractual relationship. Therefore, it may apply to someone in general administration or a 1099 independent contractor.

The minimum wage takes precedence over lower rates in wage determinations, collective bargaining agreements or apprentice programs. You cannot make up short wages with fringe or other benefits.

You must notify all workers of the requirements of the clause.

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