Executive Order 14042 Survival Guide

On September 9, 2021, the President issued Executive Order 14042, which applies new rules – including vaccination mandates – to Federal contractors and subcontractors. EO 14042 does not include a weekly testing option and is therefore a true vaccination mandate. The rule defines “Federal contractor” very broadly. As a result, the rule likely covers most companies doing business with the Federal Government, including employees of those businesses even if those employees are working from home (e.g., HR, legal, and billing employees who may not be on site). The rule also covers subcontractors at all tiers, including certain vendors. Sheppard Mullin’s Construction practice group diligently has been working in this area since the announcement of the Executive Order and release of related Task Force Guidance, and Sheppard Mullin’s Government Contracts group has developed an Executive Order 14042 Survival Guide that answers many of the questions related both to the EO and Guidance. Keep an eye out for updates to the Survival Guide as we continue monitoring the roll out of the new rule.

Scabby Survives Another Trip to the NLRB: Board Reaffirms Rat-and-Banner Displays Targeting Neutral Businesses Are Permissible

On July 21, 2021, the National Labor Relations Board (“NLRB” or the “Board”) issued a 3-1 decision affirming its precedent that displaying banners and a large inflatable rat (“Scabby the Rat”) near neutral employers does not violate the National Labor Relations Act (“NLRA” or “the Act”).  This decision may come as a disappointment to many employers as the NLRB under the Trump administration had been making efforts to end what many felt was unlawful secondary picketing under the Act.

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Build Me A Building As Fast As You Can

Not your average game of patty-cake! Earlier this week, New York’s  First Department, Appellate Division issued its decision related to 200 Amsterdam,[1] overturning the lower court’s decision which would have required 200 Amsterdam to remove several floors of its building in order to comply with zoning.  The lower court determined that the NYC Zoning Resolution did not permit a developer to utilize a portion of a tax lot to merge with a neighboring zoning lot. Continue Reading

Landmark Contractor Licensing Case Limits Disgorgement Remedy in California

Contractors performing work in California are required to be licensed by the California State License Board (“CSLB”).  Cal. Bus. & Prof. Code §7065.  Except for sole proprietors, contractors are typically licensed through “qualifiers,” i.e., officers or employees who take a licensing exam and meet other requirements to become licensed on behalf of the contractor’s company.  Contractors who perform work in California without being properly licensed are subject to a world of hurt, including civil and criminal penalties (see, e.g., Cal. Bus. & Prof. Code §§ 7028, 7028.6, 7028.7, 7117, and Cal. Labor Code §§ 1020-1022), and the inability to maintain a lawsuit to recover compensation for their work.  Cal. Bus & Prof. Code § 7031(a); Hydra Tech Systems Ltd. v. Oasis Water Park, 52 Cal.3rd 988 (1991). Continue Reading

California Construction in the Time of Covid-19

Amidst the ongoing Covid-19 pandemic, daily and sometimes hourly changes in federal, state, and local orders and regulations are significantly impacting the construction industry.  This blog provides an overview of practical issues to consider related to your California construction projects in light of the ever-changing landscape. Continue Reading

Last, but NOT Least: Why You Should Take a Closer Look at Your Next Indemnification Clause

Indemnification clauses appear in nearly every agreement, but they are often overlooked as mere boilerplate provisions after the parties have painstakingly negotiated all of the other terms. It is not uncommon for parties to simply re-use the indemnity language from a prior agreement without considering whether it is a good fit for their current project. This can be a big mistake that may lead to ambiguities and uncertainties if a dispute arises down the road. A standard or canned indemnification clause might work to undo all of the effort that has gone into properly allocating risk. These clauses often contain language such as “notwithstanding anything to the contrary herein,” or the like, which can alter and override other provisions in the agreement. Continue Reading

Breaking with Tradition, The Current NLRB is on a Rulemaking Tear: Election Procedures, Recognition Bar, and 9(a) Collective Bargaining Relationships

In its 84-year history, the National Labor Relations Board (NLRB, Board or Agency) has promulgated a very small number of rules pursuant to the Administrative Procedures Act, relying, instead, on individualized adjudications to establish the Board’s legislative policies. However, breaking with that long tradition, the current Board now appears to be on the verge of a formal rulemaking jag for on May 22, the Board released its “Unified Agenda” of anticipated regulatory actions which, in addition to proceeding with rulemaking regarding joint employer standards, announced the Board’s intention to consider formal rulemaking in a number of critical areas. Consistent with that wide-ranging Agenda, on August 12, the Board published a Notice of Proposed Rulemaking (NPRM) over the objection of Democratic appointee, Lauren McFerran, that would amend the Agency’s rules and regulations governing the filing and processing of election petitions in three very important ways. This NPRM, therefore, deserves attention. Continue Reading

Labor Development Impacting Developers, Contractors, and Landowners

It is unlawful for unions to secondarily picket construction sites or to coercively enmesh neutral parties in the disputes that a union may have with another employer.  This area of the law is governed by the National Labor Relations Act (“NLRA”), the federal law that regulates union-management relations and the National Labor Relations Board (“NLRB”), the federal administrative agency that is tasked with enforcing the NLRA.  But NLRB decisions issued during the Obama administration have allowed a union to secondarily demonstrate at job sites and to publicize their beefs over the use of non-union contractors there, provided the union does not actually “picket” the site.  In those decisions, the NLRB narrowed its definition of unlawful “picketing,” thereby, limiting the scope of unlawful activity prohibited by law. Included in such permissible nonpicketing secondary activity is the use of stationary banners or signs and the use of inflatable effigies, typically blow-up rats or cats, designed to capture the public’s  attention at an offending employer’s job site or facilities. Continue Reading

EPC Contractors Procuring from Foreign Companies need to Reconsider their Contracts

A recent California case may force engineering, procurement and construction companies doing business with foreign suppliers to reconsider—and maybe rewrite—their contracts. In Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Co., Ltd., the California Court of Appeal held that parties may not contract around the formal service requirements of the Convention on the Service Abroad of Judicial and Extrajudicial Documents, commonly referred to as the Hague Service Convention. The decision could have profound implications for international business. Continue Reading

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