OSHA Delays Silica Rule

On Thursday, April 6, the U.S. Department of Labor's Occupational Safety and Health Administration ("OSHA") announced that it would delay implementation of the new silica safety standards by three months, until September 23, 2017.  According to OSHA's news release, "[t]he agency has determined that additional guidance is necessary due to the unique nature of the requirements in the construction standard."

During the next few weeks, OSHA is expected "to conduct additional outreach and provide educational materials and guidance for employers."


Lien Law Update: Lien Agent Statutes up for Proposed Revision

Thanks to Connie Wilson for the heads-up...

Senate Bill 602 was filed today.  The bill proposes to make the first significant revisions to the lien agent statutes since they were implemented five years ago.  The stated goal of the bill is to provide for the cancellation of notices to lien agent.

The proposal is positive in the sense that it is entirely permissive.  All of the amendments dealing with cancellation of a notice to lien agent provide that the potential lien claimant "may" deliver a cancellation, and there is no requirement that a potential lien claimant "must" do so.  (As a practitioner's note, the bill uses the term "file" inaccurately, since notices are not filed with the court, but rather are delivered to a title insurer / lien agent.)

However, the fact that the cancellation provisions are permissive does not mean the bill is perfect.  There is language in proposed section 44A-11.2(s) discussing the effect of a cancellation in the event a contractor delivers a subsequent notice.  Under the bill, the new notice "would not relate back to or renew the cancelled filing."  As it is, notices to lien agent automatically "relate back" to the beginning of a project provided there has not been a sale or refinancing of the property.  The same should be true for a new notice -- either the notice is timely with respect to a given sale or refinancing, or it is not.  So subsection (s) needs to clarify that it is in relation to such an event, rather than implying that the effect of a notice is somehow limited in time.

New proposed subsection (t) also suffers from loose language.  The new subsection would automatically cancel a notice after five years "if not cancelled or renewed pursuant to the procedures described in this section."  However, there is no provision for renewal of a notice under current law.  This would need to be cleaned up, or else a new provision for renewing notices will need to be added.

Finally, the bill provides for amending the permitted fee for a designation of lien agent from $25 to $30 for a residential (one- or two-family dwelling) project, and from $50 to $58 for any other project.  Given that the bill's stated intention is to allow for cancellation of notices to lien agent, the cost increase -- which will likely be passed along to the general public -- should be justified at a minimum. 

Watch this space for further developments regarding this bill.



NC Department of Revenue advises on Sales Tax law

Thanks to the NC Constuction News for the heads-up on this...

On March 17, 2017, the North Carolina Department of Revenue published an advisory notice that provides the most extensive and detailed guidance to date for the construction industry on what is, and is not, covered by the "capital improvement" and "repair, maintenance, and installation services" categories of the recently amended sales and use tax laws.  While explicitly disclaimed that it is "not specific tax advice," the chart in the bulletin breaks down various construction categories, and indicates whether activities applicable to that trade or activity are capital improvements or RMI services.  

This blog would strongly recommend bookmarking to the notice if any construction business has questions about application of the sales and use taxes in North Carolina.


Employee Misclassification Update: North Carolina Signs MOU With U.S. Department of Labor

Over the past year, our firm has monitored the issue of employee misclassification in the state and proposed bills in the legislature addressing the issue.  We have previously posted articles monitoring and updating information, and we presented a short update on misclassification at our annual Summer Construction Conference.  Today we bring another update regarding ongoing questions surrounding the State’s efforts to combat employee misclassification.

As a recap, employee misclassification occurs when an employer knowingly or mistakenly classifies an employee as an independent contractor.  This classification has certain consequences for wage reporting, taxes, and workers’ compensation requirements, among others.  The practice of misclassification in the construction industry is estimated to cost North Carolina over $450 million every year in lost tax revenue.  Furthermore, businesses that misclassify workers have lower operating costs, allowing them to underbid competitors for jobs.  One of practical benefits of combating misclassification to the NC construction industry is that it creates a level playing field for all employers. 

On August 31, the NC Industrial Commission signed a Memorandum of Understanding (MOU) with the U.S. Department of Labor’s Wage and Hour Division (WHD) to better combat and prevent employee misclassification in the state.  The Industrial Commission’s Employee Classification Section is responsible for identifying businesses within the State suspected of misclassification.  The MOU allows the Employee Classification Section and WHD to share data on companies suspected of misclassification and permits collaboration between the agencies during investigations.  The Employee Classification Section is responsible for distributing this information to other state agencies, such as the Department of Labor, Department of Commerce, and Department of Revenue.  The agencies believe this MOU will help increase employers’ compliance with paying state and federal taxes, federal wage payment laws, workers’ compensation requirements, and unemployment benefits.

By signing this MOU, North Carolina joins 32 other states currently collaborating with federal officials to prevent employee misclassification.  For more information about misclassification of employees as independent contractors and what this MOU could mean for your business, please call us at (919) 828 – 1396.


Cool Construction: Freeways that generate electricity

The AGC Smartbrief provided the original link to a story from KCRA-TV, a Sacramento (CA) news station:

“When cars drive along roads, they vibrate the roads; and it sounds like science fiction, but scientists have developed a material that gets a charge simply from the vibration of a car or truck,” Assemblyman Mike Gatto, D-Glendale, explained.

It's known as piezoelectric technology. Gatto introduced the idea to state lawmakers in 2011 after learning these tiny sensors were being used to generate electricity in Israel, Italy and Japan.

“We could use our roads to generate power and maybe that power could be sold,” Gatto said. “And God forbid, we actually pave some of those roads -- which are in terrible shape.”

According to the story, a 1.5 mile stretch of two-lane highway could generate enough electricity to power 1,000 homes.

The concept of piezoelectricity involves using crystals to convert mechanical energy into electricity.  The application of installing sets of the crystals into roadways dates back almost a decade, with installations such as this project in Israel.  The California Energy Commission studied the application in a 2014 report, which recommended extended field tests to determine the costs and benefits of highway installation.  Now, according to reports, the Commission is prepared to fund multiple pilot projects throughout California.

Piezoelectricity has other fun applications too.  The Temple Night Club, a certified "sustainable" dance club in San Francisco, installed a piezoelectric dance floor, where the dancers power the flashing LED lights built into the floor.