Construction Law Blog

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 ...

We have previously reported on two bills that would have repealed Right to Work in full (HB153, Del. Lee Carter) and in part (SB426, Sen. Richard Saslaw). Both of these bills have failed in the General Assembly and will not become law. HB153 failed to pass the House Appropriations committee when that committee refused to schedule a vote on the bill before Crossover, the date by which all House bills must be heard in the House (and all Senate bills must be heard by the Senate). The Senate Bill was passed by indefinitely in the Senate Commerce and Labor committee, which means the bill will not be taken up by the Senate before crossover. 

The Virginia Senate Judiciary Committee, in a rare showing of bipartisan support, voted unanimously 13-0 on Wednesday night (February 5, 2020) to advance the new “state contract statute of limitations” bill to the Senate Finance Committee for further review and approval. This follows unanimous (and bipartisan) approval of a substantially similar companion bill on Monday afternoon (February 3, 2020) by the House of Delegates Courts of Justice Civil Subcommittee. The House bill will also go to the House Finance Committee for review and approval.

The Senate bill, which is ...

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 ...

The Virginia Department of General Services has issued its General Assembly-mandated report on current Virginia law regarding state construction contracts and the freedom that the Commonwealth currently enjoys from any statutory time limitation on the state’s ability to bring claims against its contractors. 

As Democrats have now taken control of Virginia’s legislature, legislators and pundits have begun to debate repealing Virginia’s Right to Work law.  Delegate Lee Carter of Manassas has filed a bill that would repeal Right to Work, House Bill 153. What is Right to Work and what could a repeal of the law mean for you?

Construction industry professionals faced a number of challenges in 2019—chief among them a persistent labor shortage. 2020 promises to bring similar challenges to the construction industry. Below we identify six trends we expect to carry forward into the new year.

The 2019 General Assembly bill, supported by the Hirschler Construction Law Team, that would have created a five-year statute of limitations on public projects, hit a roadblock during the 2019 Session when the House Appropriations Committee requested that the Department of General Services (DGS) conduct a study of the bill over the summer and fall of this year. After considering the findings of a recent survey and series of town hall meetings, the DGS is expected to issue a report by December 31, 2019.  In our latest post we discuss the survey findings and our own town hall participation which will impact the DGS’s report.

We have previously written about the Hensel Phelps case here and here and the result in that case arising from the Commonwealth’s complete immunity on state jobs from the normal five-year contract statute of limitations (in Hensel Phelps, a state agency was allowed to bring suit against a general contractor fourteen years after substantial completion). A recent Supreme Court of Virginia case arising in a different context highlights the need for either: (1) the General Assembly to change this law allowing the Commonwealth to bring stale lawsuits; or (2) general contractors to ...