In a recent U.S. Supreme Court case about pregnancy discrimination, Justice Breyer asked: “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”  As an employer, that is a question you should now be asking when preparing, reviewing, or updating your company’s accommodation policies.

Many employers have policies and practices to ensure accommodation of disabled workers or those with temporary injuries or disabilities. However, employers may be overlooking their legal obligations to accommodate another group of workers: pregnant women who have pregnancy-related work limitations. Continue Reading Does your Employee Handbook stand up to the Supreme Court’s latest decision about accommodations for pregnant workers?

The City of Philadelphia has issued new code requirements for construction worker safety training. The new rules went into effect on October 1, 2015, and the Department of Licenses and Inspections has announced that strict enforcement will begin on April 1, 2016.

Under the new regulations, all contractors and employees (including subcontractors) performing construction or demolition work in the City of Philadelphia for which permits have been issued are now required to complete OSHA 10 safety training, or an approved equivalent. This requirement applies to all trades, as well as state-registered home improvement contractors. Workers are required to carry written proof establishing that they have completed an OSHA 10 training course while on the job site, and their employers must also maintain on-site proof of completion for each worker. This information must be furnished to the Department of Licenses and Inspections upon request. The OSHA 10 training is only required to be completed once and does not expire.

Additionally, all contractors licensed under Section 9-1004 of the Philadelphia Code must employ at least one supervisory employee who has completed OSHA 30 safety training, or an approved equivalent, within the past 5 years. Construction or demolition of major buildings requires continuous oversight by a site safety manager who has completed an OSHA 30 course. The designated site safety manager must carry an identification card or certificate of completion issued by the provider of the OSHA 30 training course.

Continue Reading Attention Philadelphia Contractors: Do You Comply with OSHA Training and Supervision Requirements?

On February 12, 2016, New York City Mayor Bill de Blasio and New York City Department of Buildings Commissioner Rick Chandler announced a new aggressive campaign to improve worker safety on construction sites. Specifically, commencing next Tuesday, February 16, rigorous safety sweeps of constructions sites ten stories or less are expected to be performed.

Doubtlessly, this initiative is a direct result of 1) an increase in construction related deaths in 2015, and 2) the investigation into the death of a worker on a project at Ninth Avenue that resulted in, among other things, the August 5, 2015 indictment of Harco Construction and its site safety manager for manslaughter and the debarment of Harco for safety violations.

In 2015, there were 11 deaths on New York City construction sites during which time there has been a 300% increase in construction in the City. However, in an unexpected development, 70% of all accidents occur at building sites of less than 10 stories.

Continue Reading Beware: New Rigorous Safety Sweeps of NYC Construction Sites to Begin

On December 3, Jennifer Horn and Maria Panichelli presented the second webinar in their core construction curriculum series for Women Impacting Public Policy and Give Me 5%. The presentation, entitled “Best Practices in Construction,” covered suggested best practices for before, during, and after conclusion of a construction project, in the context of both state and federal jobs. The presentation provides tips on contracting, documentation, compliance, and claims prevention strategies. Start implementing business practices that make the difference between a profitable construction project and one that exposes your company to financial risk now! Check out: “Give Me 5: Best Practices in Construction,” here.

Jennifer M. Horn is a Partner at Cohen Seglias and a member of the Construction Group. She concentrates her practice in the areas of construction litigation and real estate.

Maria L. Panichelli is an Associate in the firm’s Federal Practice Group.

December 21, 2012 was the effective date of the Philadelphia Lead Paint Bill 100011-A (the “Ordinance”), which amended Chapter 6-800 of the Philadelphia Code and established new lead paint disclosure and certification requirements for certain residential rental properties. The Ordinance places a substantial burden on the owners of affected properties (“Targeted Properties”), requiring costly and burdensome inspections and certifications regarding the presence of lead paint older housing units. The Ordinance also applies to existing leases, requiring property owners to comply with the Ordinance within ninety days of the effective date, or March 21, 2013.

Certain properties were exempted from the Ordinance:

  • housing units in which children six years of age and younger will not be residing during the lease term;
  • student housing owned by educational or academic institutions;
  • buildings leased entirely to college or university students;
  • housing units owned or subsidized by the Philadelphia Housing Authority; and
  • units leased under the HUD Housing Choice Voucher Program, more commonly referred to as Section 8.

The Ordinance requires that when entering into a lease with a residential tenant, an owner of a Targeted Property must provide both the tenant and the Philadelphia Department of Public Health with a certification from a certified lead inspector, stating that the Targeted Property is either (i) lead safe or (ii) lead free. A certification that the property is lead safe is valid for two years, whereas a certification that the property is lead free is permanent in nature. If an owner fails to obtain one of the required lead certification before leasing a Targeted Property, the owner may be liable to the City of Philadelphia and/or the tenant for up to double the cost of the following expenses: (i) inspection of the leased property, (ii) rent abatement, (iii) injunctive relief necessary to compel the owner’s compliance with the Ordinance, (iv) attorneys’ fees and costs, and (v) exemplary damages of up to $2,000 per offense. Owners of a Targeted Property must annually certify their compliance with the requirements of the Ordinance or risk having their housing inspection license revoked.

Additionally, owners must notify tenants, in writing, that it is the tenant’s responsibility to periodically inspect the property and notify the owner of the presence of deteriorated paint, which is defined in the Ordinance as paint that is either cracking, flaking, chipping, peeling, chalking, not intact or otherwise separating from the substrate of a building component, except that pinholes and hairline fractures attributable to the settling of a building shall not be considered deteriorated coating. Upon such notification, the owner must promptly make the necessary repairs.

Owners should be careful not to violate other existing laws while trying to comply or exempt themselves from the Ordinance. For example, while properties not occupied by persons under the age of six are exempt, owners must be careful not to inquire if a potential tenant has children or intends to have children under the age of six living in the property, because inquiring about children when leasing a residential property may be a violation of the Pennsylvania Human Relations Act or the Federal Fair Housing Act. The Owner may only inquire if children will reside in the property after the owner has made a firm offer to rent to that tenant.

Marian A. Kornilowicz is the Chair of the Business Practice Group of Cohen Seglias Pallas Greenhall & Furman PC. His practice is concentrated in the representation of clients in varied business transactions and real estate matters. 

Alex Barth is an Associate at Cohen Seglias Pallas Greenhall & Furman PC and a member of the Business Practice Group.

By: Scott T. Earle House Bill 109 (HB 109), which was passed by the House of Representatives, has stalled out in the Senate. This Bill was a proposed amendment to Title 6, Chapter 35 of the Delaware Code Delaware2.jpgBuilding and Construction Payments section (the Act).

What Would HB 109 Have Changed?

HB 109 would have changed the name of the Act to the “Building Construction Procedures Act” and expanded the scope of the Act to apply to all forms of construction, not just construction related to buildings or structures. The amendment would have also made it against public policy to apply any other law but Delaware law to construction contracts performed in the state. It also would have required an in-state contractor to participate in any legal proceedings inside the State of Delaware. Additionally, HB 109 would have consolidated and amended the contract clauses currently contained in Sections 3506 and 3507 into one section to harmonize the timing of events set forth in these Sections, which are presently inconsistent. Finally, the amendment would have also changed the time in which a contractor or subcontractor has to dispute an invoice from 7 days to 15 days.

Next Steps for HB 109

HB 109 was passed by the House on June 22, 2011 and received no opposition. The amendment was passed with forty out of a possible forty-one votes in its favor. After being passed by the House, the amendment was introduced to the Senate on June 23, 2011 where it stalled out in the Executive Committee and expired when the General Assembly recessed on June 30, 2011. HB 109 is anticipated to be reintroduced next January when the General Assembly reconvenes. We will monitor HB 109 and update you when the General Assemble reviews the legislation. Scott T. Earle is a Senior Associate with Cohen Seglias and a member of the Business Transactions Group.

Building owners in the City of Philadelphia had better start paying closer attention to what’s on the outside. Earlier this year, Mayor Michael Nutter signed an ordinance — Periodic Inspection of Exterior Walls and Appurtenances of Buildings — amending the City’s Building Construction and Occupancy Code, and mandating periodic inspection and repair of building exteriors. The ordinance also requires owners to file inspection reports with the Department of Licenses and Inspection (DLI). Affected buildings are defined by the ordinance as all buildings that are six stories or higher and all those that have any appurtenances greater than 60 feet in height. While the ordinance could make life more difficult for building owners, it will create opportunities for contractors seeking work in Philadelphia.

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Ordinance Requirements

Pursuant to the newly enacted ordinance, the inspections must be conducted by a “Professional,” defined as a Pennsylvania “licensed Professional Engineer experienced in the practice of structural engineering or a licensed Registered Architect knowledgeable in the design, construction and inspection of building façades.”

The deadlines to complete the first inspections and reports are as follows:

  • June 30, 2011-Buildings constructed prior to 1950 and those with a construction date that cannot be determined
  • June 30, 2012-Buildings constructed between 1951 and 1970
  • June 30, 2013-Buildings constructed between 1971 and 1980
  • June 30, 2014-Buildings constructed between 1981 and 1990
  • June 30, 2015-Buildings constructed between 1991 and 2005
  • For buildings constructed since 2005, the first inspection and report are due 10 years after the issuance of the certificate of occupancy

After the initial round of inspections and reports, inspections must be conducted and reports filed on a 5 year cycle. Owners are responsible for retaining their reports and keeping them readily available for inspection by the DLI. Violations of the ordinance are considered Class III offenses and violators are subject to a fine of $2,000 per violation.

Continue Reading What’s on the Outside DOES Count in Philadelphia

The Pennsylvania Home Improvement Consumer Protection Act, HICPA, went into effect on July 1, 2009. HICPA was designed to protect purchasers of home improvement services from contractors engaging in deceitful business practices or doing shoddy work. According to Attorney General Tom Corbett, “[h]ome improvement rip-offs impact every community across our state, taking money out of the pockets of homeowners and also victimizing the honest, hard-working businesses who could have performed the work.” In explaining the purpose of HICPA, Corbett stated that it exists “to protect consumers, contractors and communities, and it is important that everyone comply with the registration and contract requirements.”

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HICPA places significant burdens, costs and restrictions placed on contractors by this law and compliance is critical. HICPA’s requirements include registering with the Pennsylvania Office of the Attorney General (OAG), and complying with strict rules about contract content. As of September 20, 2010, 71,199 contractors had registered home improvement across Pennsylvania.

Since last year, the Bureau of Consumer Protection of the OAG has been cracking down on HICPA violators. According to Corbett, “Complaints about home improvement projects ‘gone bad’ are typically one of the top reasons for consumers to contact the Attorney General’s Office and we work vigorously to investigate these complaints and prosecute violators.” Over the past few months many new cases have been filed. These lawsuits seek restitution against the non-compliant businesses and their owners for all consumers who have been harmed, along with fines and civil penalties of up to $1,000 per violation or up to $3,000 for each violation involving a senior citizen.”

Along with the new cases filed, the OAG has reached voluntary settlements with many other home improvement businesses accused of operating without properly registering with the OAG or using non-compliant contracts. These voluntary settlements are known as AVC’s — an Assurance of Voluntary Compliance — and they require the businesses that have settled in this matter to fully comply with all of the HICPA requirements, and include civil penalties and costs of $1,250.

Corbett has encouraged consumers to check a contractor’s registration before hiring a home improvement contractor. He also advised consumers to take additional steps to protect themselves from possible home improvement scams, including:

  • Getting estimates from several potential contractors
  • Requesting references for recent work, and checking those references
  • Asking other customers if they were happy with the work that was performed by a particular contractor, if there were any problems with the project and if they would hire that person again
  • Avoiding high-pressure sales pitches, “special offers” or deals on “left over” materials
  • Being wary of individuals who approach you with unsolicited offers of stories of “just being in the neighborhood”

Filing a HICPA complaint is as easy as clicking a link to an online form available on the website of the Attorney General.

Given the crackdown by the Attorney General on violators of the law, along with the risk of civil and criminal penalties, it is essential to consult with your attorney if you have any questions about HICPA compliance.

On March 23, 2010, President Barack Obama signed the comprehensive health care reform law (Reform) to expand health care coverage in the United States.

Impact of Comprehensive Health Care Reform Law on Employers

It is an understatement to say that the Reform bombards employers with information – and fair to say that the Reform’s many new obligations present a potential compliance nightmare for them.Healthcare symbol.jpg

The Reform is an ever moving target. Employers are faced with the challenge of effectively managing their business in light of the “bigger picture” financial and tax implications of the Reform. This situation is further complicated because different aspects of the Reform become effective at different times over the next several years. Even more confusing, interpretations of the Reform’s provisions keep changing.

Recent Amendments to the Comprehensive Health Care Reform Law

Initially, the Reform required employers to report group health care plan costs on all 2011 W-2 forms. On October 12, 2010, the Internal Revenue Service (IRS) announced that this requirement would not go into effect until the 2012 tax year.

Given its purpose to expand health care coverage, the Reform subjects employer-sponsored health care plans to non-discrimination rules under IRS Code Section 105(h). In a nutshell, plans cannot “discriminate” in favor of highly compensated employees (HCEs) by giving HCEs extra or excessive benefits. Under the grandfathering rules – a critical aspect of the Reform – certain existing employer-sponsored health care plans could enjoy either a delayed effective date for compliance with, or a total exception from, certain (but not all) of the insurance reforms and new coverage mandates. Grandfathered plans do not have to comply with the non-discrimination rules.

Changes in the Grandfathering Rules

Originally, grandfathered status could be lost if an employer significantly changed the deductibles, co-payments or benefits offered or changed carriers. Specifically, the limitation on the ability of an employer to keep its grandfathered status if it shopped around for, and selected, a new insurance policy, was heavily criticized. On November 15, 2010, the Department of Health and Human Services (HHS), the Department of Labor (DOL) and the IRS announced an amendment to the grandfathering rules in response to the criticism. This revision lifted the restriction against entering a new insurance policy.

Whether or not a health care plan is grandfathered will determine an employer’s compliance obligations. It is critical that employers fully understand that changes in their health benefit plans could result in the loss of grandfathered status. The loss of grandfathered status triggers the obligation to comply with coverage mandates and non-discrimination rules that would otherwise be inapplicable.

Comprehension of the grandfathering and non-discrimination rules is essential for employers to be able to work with their benefits plans and avoid potentially costly missteps. HHS continues to field many questions, and to revise and clarify the rules governing the Reform. The Labor & Employment Group at Cohen Seglias will continue to monitor any developments regarding the evolving comprehensive health care reform law, and provide updates regarding any significant changes. Should you have any questions or concerns about how the latest changes may affect your business, please do not hesitate to contact Marc Furman or Jonathan Landesman.

Pennsylvania is making a last call for companies that are out of compliance with the Commonwealth’s Unclaimed Property Law (Law). Sunday, October 31, 2010, is the last day to enroll in the Unclaimed Property Amnesty Program. After this date, businesses that are out of compliance may be subject to penalties and interest, which can date back to the time the property should have been turned over to the Commonwealth.

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Many companies do not realize their obligations under the Law. The Law requires that any company holding any financial assets of a third party, which have been unclaimed or unused for a statutorily prescribed period of time, otherwise known as a dormancy period, is obligated to report and tender that unclaimed property to The Pennsylvania Treasury Department (Treasury Department). The Treasury Department will serve as a custodian, holding the assets in perpetuity until reclaimed by the owner.

Assets Subject to the Pennsylvania Unclaimed Property Law

Financial assets that are subject to this law include, but are not limited to, such commonplace things as:

  • Wages and Payroll
  • Accounts Payable
  • Accounts Receivable
  • Credit Balances/Customer Overpayments
  • Gift Certificates/Layaways
  • Commissions
  • Unused Refunds/Rebates
  • Escrow Accounts
  • Unused Deposits
  • Basic tangible property including, but not limited to, jewelry, money, antiques and musical instruments

Unclaimed property must be reported and turned over to the Commonwealth after a dormancy period of five years. However, unclaimed wages, payroll and commission payments must be turned over after a dormancy period of only two years.

Penalties for Non-Compliance with the Pennsylvania Unclaimed Property Law

If a company or organization does not comply with its obligation to both report and turn over unclaimed property, it runs the risk that the Commonwealth will discover this during a standard audit. If it is determined that a company has failed to properly handle, report and turn over any unclaimed property, the company will be required to turn it over and pay substantial penalties and interest. The Law provides that holders of unclaimed property who fail to file reports may be convicted and fined $100 for each day a report is withheld, up to a maximum of $1,000. Those who fail to turn over the unclaimed property may be convicted of a misdemeanor and fined between $1,000 and $10,000, imprisoned for up to two years, or both.

Pennsylvania Unclaimed Property Law Amnesty Program

While the normal reporting deadline is April 15th of each tax year, the Treasury Department has created a special amnesty program that expires on October 31, 2010. The amnesty program allows companies that have never reported unclaimed property, those who have gaps in their reporting history or those who simply missed the April 15th deadline to come into compliance without having to pay penalties and interest normally associated with non-filing. The program is open to all companies and organizations, other than those currently undergoing an audit and those that have been previously notified by the Commonwealth of their failure to report unclaimed property.

The attorneys at Cohen Seglias are available to assist businesses in determining whether they have a filing obligation in Pennsylvania and to ensure that they are in compliance with the Law. Please contact Alexander F. Barth  for more information.