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We are beginning to see courts issue rulings on when the COVID-19 pandemic excuses a party from performance. Two trends have emerged in the federal decisions that we summarize in this post. Ultimately, it appears that parties cannot use COVID-19 to excuse obligations that were in their control, but they can expect a thorough and critical analysis of their position.

In an article published by Construction Executive on July 21, Hirschler construction lawyers Kelly Bundy and Liz Burneson examine a contractor’s potential liability for employee wages if the contractor is deemed a joint employer with its subcontractors and staffing agencies.

Hirschler construction lawyer Kelly Bundy’s article on impossibility, impracticability and frustration of purpose in the age of COVID-19 has been published as part of the ABA Construction Law Forum’s “Under Construction” series.

A recent federal case reinforces the need for strict compliance with Miller Act notice requirements to secure recovery on a payment bond.

Communications between a general contractor and sub-sub prove critical in enabling a sub-sub to recover directly from the general contractor in this new Virginia Supreme Court case.

The General Assembly, in its 2020 session, passed new legislation (codified at new Virginia Code §11.4-6 and in amended and reenacted Virginia Code § 40.1-29) that makes Virginia general contractors jointly and severally liable for its subcontractors’ employee wages if the general contractor knew or should have known that the subcontractor was not paying its employees. The new law goes into effect on July 1, 2020.

We discuss how the coronavirus is impacting the construction industry and steps to address these impacts from a contractual basis.

Posted in Contracts, Payment

In an article published on Tuesday, February 25, 2020, for Contractor Magazine, Kelly Bundy and Liz Burneson discuss the enforceability of pay-if-paid provisions, alternatives to those provisions, and tips for subcontractors faced with these provisions during the contract negotiation stage and throughout the course of a project.

According to Kelly and Liz, the enforceability of pay-if-paid provisions varies by state. Subcontractors should pay attention to what law applies for each project and whether pay-if-paid provisions are enforceable in that jurisdiction. Kelly and ...

Before this year’s General Assembly Session we wrote about two companion bills that would create a statute of limitations on claims made by the Commonwealth of Virginia on construction and design contracts for state projects. 

Yesterday, in a victory for the Virginia construction and design industries, the House of Delegates bill passed, on a bipartisan and unanimous basis, out of the House Courts of Justice Civil Subcommittee, over opposition voiced by the Virginia Department of General Services (DGS), the Governor’s Office, and VDOT.

On January 12, 2020, the Department of Labor (DOL) announced a final rule to revise—and narrow—the definition of “joint employer” under the Fair Labor Standards Act (FLSA). Whether or not a company is a joint employer is a question that contractors who use staffing agencies, franchise businesses, and firms that outsource services should be asking themselves. In recent years, a growing number of Americans have found themselves in these types of work arrangements. A contractor or franchisor who is determined to be a joint employer can end up on the hook for wages that were ...

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