Tuesday, June 30, 2009

Wage & Overtime Claims: When Builders Must Wear the HR Manager (Hard)Hat

Just as any construction project has many parts that must be effectively executed to achieve the end product, every construction company has many components that it must manage to ensure success. One of the more important ones is personnel/human resources. At the end of the day, all the nice equipment, financing, and contracts don’t mean much if there are no skilled trades and craftsmen on the ground to bring a project to life.

The world’s leading HR management organization, SHRM (Society for Resource Management) recently published a study that about 72 percent of employees across the nation said they work through lunch, while 70 percent reported working beyond a 40-hour workweek. Only 21 percent of the people polled cited pressure from supervisors as the reason for this. To the contrary, 52 percent claimed the extra work was because of "self-imposed pressure," while 44 percent cited "meeting project or performance goals."

Discussions about overtime and extra work may, on its face, seem a little out of place for a construction industry that has been hit hard financially in the last 18 months and seen plenty of layoffs. Recently, however, there have been trickles of encouraging economic news ("green sprouts," as Fed Chairman Ben Bernanke has called them), and we know that the industry will pick up at some point. The SHRM survey and the construction industry layoffs all beg the question of what will companies do when they face increased workloads with decreased workforces? Put another way, should you worry when employees start working that extra time to meet project and performance goals?

The Fair Labor Standards Act (29 U.S.C. 201, et seq.) is the starting point for many wage and pay claims. At its most basic level, the FLSA requires employers to pay a minimum wage to employees for each hour of work. As a general rule, all job-related activity or time is included in "hours worked," unless specifically excluded by the Act. Non-exempt employees generally are to be paid overtime at not less than 1½ times the regular rate for all work time in excess of 40 hours per week.

Sounds simple enough, right? It gets a little trickier. What all exactly is considered "hours worked"? What if the employee works extra time without approval? Is driving to a job site considered "hours worked"? What about down time waiting for other contractors to finish their portion of a project? Are employees still on the clock under these circumstances?

If an employee voluntarily works extra hours, that time is considered "hours worked" and must be compensated. The reason for the extra work is not important–what matters is whether the employer knew or had reason to know the employee was working extra.

Whether waiting time is "on the clock" is a more fact intensive issue–it is a question of whether the employee was engaged to wait or waiting to be engaged (generally speaking, engaged to wait = hours worked; waiting to be engaged...not typically hours worked).

If an employee is not able to effectively use waiting time for his own purposes, it generally belongs to and is controlled by the employer. Under this scenario, the employee is "engaged to wait." This is the case even if they are just chatting with co-workers, reading a book, or working a crossword puzzle. Periods of being engaged to wait are typically shorter in duration, and the waiting is an integral part of the job (imagine a truck driver waiting while his trailer is being unloaded).

Additionally, an employee who is required to remain on call on the employer's premises or so close that he cannot use the time effectively for his own purposes is working while "on call." An employee who is not required to remain on the employer's premises but is merely required to leave word at his home or with company officials where he may be reached is not working while on call.

Of the other side of the coin, periods during which an employee is completely relieved from duty and which are long enough to enable him to use the time effectively for his own purposes are not "hours worked."

An employee who travels from home before his regular workday and returns to his home at the end of the workday is engaged in ordinary home to work travel which is a normal incident of employment. This is true whether he works at a fixed location or at different job sites. Normal travel from home to work is not worktime.

However, time spent by an employee in travel as part of his principal activity, such as travel from job site to job site during the workday, must be counted as hours worked. Where an employee is required to report at a meeting place to receive instructions or to perform other work there, or to pick up and to carry tools, the travel from the designated place to the work place is part of the day's work, and must be counted as hours worked regardless of contract, custom, or practice. If an employee normally finishes his work on the premises at 5 p.m. and is sent to another job which he finishes at 8 p.m. and is required to return to his employer's premises arriving at 9 p.m., all of the time is working time. However, if the employee goes home instead of returning to his employer's premises, the travel after 8 p.m. is home-to-work travel and is not hours worked.

At some point, construction companies (and hence, construction workers) will be doing more work with fewer people because of recent downsizings. These examples are just a few of the situations that are commonly encountered in routine wage and hour determinations. It is important to get these matters right, because mistakes in this area can be very costly. Employees can bring an action for the compensation and overtime that they earned, and they are entitled to attorney’s fees. This is certainly one area where an ounce of prevention is much better than a pound of cure.

Tuesday, June 9, 2009

Legislative Wrap-Up: Anti-Indemnity Legislation Fails and Texas Residential Construction Commission To Expire

Another session of the Texas Legislature recently concluded and, as usual, there will be plenty for the political talking heads to chew on for a while. Among the thousands of bills that were proposed this year were a few that were of particular interest to the construction industry.

SB 555 (and its identical companion bill, HB 818) would have effectively eliminated indemnity and additional insured provisions in construction contracts. According to that proposed legislation, provisions in a construction contract would be void and unenforceable if they required an indemnitor to indemnify or defend another party (the "indemnitee") against a claim to the extent that the claim was caused by the negligence or fault of the indemnitee. An "additional insured" provision would also be void to the extent it requires insurance for this same scenario (the indemnitee’s own negligence).

This would have represented a major change in construction contracts, since this basic risk shifting so common in most construction contracts would be fundamentally altered. However, SB555 (and HB818) failed to pass. So the abolition of indemnity will be off the table for at least two years until the next legislative session.

How you felt about SB 555 (and HB 818) probably depended on the nature of your business. Subcontractors, who tended to be ones doing the indemnifying, were generally more supportive of the bill. Owners and developers, who typically benefitted from indemnification, were more opposed to it.

While the bill did not pass this session, it did have some support. And the concept is not a novel one. For example, Oregon has enacted an anti-indemnity statute (Oregon Revised Statute 30.140) similar to what was proposed in SB 555. It will be two years until the next legislative session in Texas, and a lot can happen in the political landscape between now and then (not to mention the construction industry). However, I would not be surprised if this issue comes up again and legislators make another effort at some form of anti-indemnity legislation.

A second issue that was being followed closely was the future of the Texas Residential Construction Commission. As I wrote about here, the Texas Residential Construction Commission ("TRCC") is set to expire later this year. Several lawmakers introduced a number of different bills that would call for various changes to the TRCC. Some called for the continuation of the TRCC but with changes to its procedures; some called for its outright abolition.

At the end of the day, however, nothing passed that would rescue or reform the TRCC. As a result, the Commission will naturally phase out in the months ahead. While the TRCC had some supporters, its detractors (which included most consumers and many builders) seemed to be more numerous and vocal, and it is doubtful the Commission will be missed by many.

This will definitely bring about a change in the legal landscape in the residential construction industry. Without the TRCC, parties are more on their own in their contractual negotiations, and the barriers to litigation will be lifted.

All in all, this legislative session ended like many before it–some things were accomplished while others didn’t quite get finished. And in two years, we’ll do it all over again.