Welcome to the second issue issue of the year for The Site Report.

First, we are very pleased to welcome Robert A. Ziogas to the firm. Bob is a Member in our Roanoke and Winston-Salem offices. His primary area of practice is litigation, with a focus in construction law. Bob’s extensive construction law experience brings a wealth of knowledge for our clients and especially those in the construction industry. He is very well versed in litigating matters in insurance, construction (including, among other things, construction contract disputes, defect claims, mechanic’s lien and payment bond claims), commercial and business disputes and various other civil suits in state and federal courts; advising owners, developers, contractors, subcontractors, material suppliers, and other construction clients on how to prepare for and respond to the challenges of large construction projects; guiding and representing clients involved in commercial disputes in alternate dispute resolution proceedings before arbitrators and mediators; and providing general corporate and business advice toward avoiding the pitfalls that can lead to litigation.

Bob’s reputation precedes him. He is AV® Preeminent™ Peer Review Rated by Martindale-Hubbell. He has been selected by his peers for inclusion in The Best Lawyers in America® in the area of Commercial Litigation. He is listed in Virginia “Legal Elite” by Virginia Business Magazine. And, he has been selected for inclusion in Virginia Super Lawyers, including being named among the "Top 100 in Virginia" on several occasions.

We are very pleased to have Bob on board. Please join us in welcoming him to the firm.

In addition, we have a couple of meetings that our legal professional readers may find of interest.

First, we are sponsoring the West Virginia State Bar 2023 Annual Meeting being held March 26-27, 2023. The Annual Meeting is the ideal venue to reconnect with lawyers and friends – and to build new relationships. Click here to learn more and register.

Second, for those of you interested in labor and employment law, we are pleased to sponsor the ABA's 2023 Employment Rights and Responsibilities Committee Midwinter Meeting being held March 13-17. The ERR Midwinter Meeting will offer a wide range of thought-provoking and topical educational programming. Several years in the making, the subcommittees have joined forces to offer a mock trial that combines theory and practice in a multi-panel presentation. Presented through four separate panels, the mock trial will explore investigations, whistleblower and retaliation claims, and collateral torts. Other panels will discuss the Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization and its effect on labor and employment matters, emergency ethics matters, the future of employment arbitration agreements, and new developments in international labor and employment law. Click here to learn more and register.

We hope you enjoy this issue and, as always, thank you for reading.

Stephanie U. Eaton - Co-Chair, Construction Group; Vice Chair of Southern Offices, Litigation Department; Editor, The Site Report

and

Julian E. Neiser - Co-Chair, Construction Group; Vice Chair of Northern Offices, Litigation Department

By Kevin L. Carr and Chelsea E. Thompson

The Equal Employment Opportunity Commission (“EEOC”) plans to prioritize its efforts to correct discrimination and harassment in the construction industry following a review of data that revealed the construction sector to be one of the most challenging areas in terms of discrimination and harassment cases. As detailed in its draft Strategic Enforcement Plan (“SEP”) for 2023 through 2027, the EEOC believes that the construction industry suffers from a systemic “lack of diversity” and has become an “area of particular concern.” The EEOC’s SEP is a guidance document that establishes the Agency’s priorities over a multi-year period. By identifying the construction industry as a particular focus area in the SEP, the EEOC is signaling its intent to focus its substantial resources on the construction industry over the next several years.

Click here to read the entire article.

As published in For the Defense by Steven C. Hemric and Marlon A. Primes

Both certifying your business as an MBE, WBE, or DBE and entering into joint ventures with other companies can be powerful tools to strategically grow your experience and client bases. This article provides background and key issues to address when creating joint ventures intended to pursue minority-owned business set aside contracts under the Small Business Administration’s Section 8(a) Program. Several key issues should be addressed in any joint venture, as well, and the Section 8(a) framework discussed in this article can be an excellent starting point when any two businesses are considering forming a joint venture in the construction industry.

Click here to read the entire article.

By Victoria L. Creta

Construction continues to be one of the deadliest industries in the United States, and the Occupational Safety and Health Administration (“OSHA”) is heavily targeting construction workplaces. In 2022, OSHA inspected construction workplaces more than any other industry, and OSHA’s focus on construction employers is expected to continue this year. As such, construction employers should be aware of a recent OSHA press release, and two enforcement memorandums, indicating that construction employers will face a significant increase in penalties for violations and citations.

Click here to read the entire article.

By Kevin L. Carr

In recent years, there has been a surge in new union organizing efforts and tactics to unionize and organize employers around the country. From Amazon workers in Jacksonville to Starbucks employees in 280 stores and counting, unions are imploring workers to turn to unions to help address issues like low wages, lack of benefits, and poor working conditions. Unionizing has become more heavily publicized, even romanticized, in the media and many employees have bought in to the movement. However, very few employers are as enthusiastic about unionization as their employees.

Click here to read the entire article.

“The standards would require that projects be built with material manufactured in the U.S.”

Why this is important: During his recent State of the Union address, President Biden stressed that for construction projects funded with 2021 Infrastructure Investment and Jobs Act (“IIJA”), the materials – such as drywall, lumber, and glass – would be supplied by American suppliers. The Office of Management and Budget (“OMB”) is working on proposed standards to replace temporary rules applicable to IIJA projects. These standards are to define “American made” so that project owners, developers, and contractors know whether materials sourced for IIJA projects meet the funding requirements.  

The “Buy American” plan is intended to promote job growth, strengthen supply chains, and lower costs. However, given the current post-COVID challenges the construction industry is facing, such as increased costs and material and labor shortages, certain construction groups have lobbied for extended waivers from application of these rules. Notably, the OMB is proposing that the rules would allow federal agencies – such as the EPA, Army Corps of Engineers, Departments of Transportation, Interior and Commerce – that are implementing IIJA projects to waive the American-made sourcing requirements in certain cases, such as if the American-made materials were unavailable or because of high costs. As the OMB develops and implements standards, it will be important for any construction industry participant working on an IIJA project to understand how the “Buy American” rules apply to project materials and whether a waiver of rule application applies and should be requested. --- Stephanie U. (Roberts) Eaton

“’The natural gas, pipeline and construction sectors provide thousands of jobs to hard-working West Virginians.’”

Why this is important: In the last The Site Report, we discussed the anticipated increase in infrastructure construction in West Virginia due to federal funds being poured into bridge construction/repair and the Coalfields Expressway Project by way of the Infrastructure Investment and Jobs Act. With an increase in infrastructure construction comes an increase in construction employment. However, when it comes to infrastructure employment, West Virginia Attorney General Patrick Morrisey (“AG Morrisey”) fears that what one hand of the federal government giveth, the other hand of the federal government may taketh away.  

West Virginia is a leading natural gas producer. AG Morrisey, along with Attorneys General in 23 other states, sent a letter to the EPA expressing their fears that new proposed EPA rules would “establish new standards of performance under the Clean Air Act for new and modified sources of methane in the oil and natural gas sector.” These new standards would have a significant negative impact on the natural gas industry in West Virginia by significantly increasing the EPA’s authority while imposing more regulatory obligations on market participants. This increase in regulatory obligations could not just result in increased costs in the natural gas industry, but also may force natural gas companies to exit the industry altogether because of their inability to comply with the stricter regulatory structure. AG Morrisey worries that the proposed EPA rule will jeopardize thousands of West Virginia jobs in the natural gas, pipeline, and construction industries. If you are involved in the natural gas or construction industries, and you need help navigating this ever-changing regulatory landscape, please contact Spilman’s Energy and/or Construction Practice Groups. --- Alexander L. Turner

“A proposal advancing in the state’s code council would bring North Carolina’s energy conservation code in line with the latest international guidelines, a major leap forward for a state that has long lagged.”

Why this is important: In 2018, second-term Governor Roy Cooper issued climate-related Executive Orders, which was followed in 2019 by the state’s clean energy plan. North Carolina made a big stride toward making a positive impact on climate change when Governor Cooper signed House Bill 951 in October 2021, which legislation requires the North Carolina Utilities Commission to take steps needed to get North Carolina a 70 percent reduction in carbon emission by the year 2030 and to carbon neutrality by 2050. You can read the press release here and our discussion of this legislation in The Site Report article "Which states could gain the most from energy-saving building codes?" Now, to further push North Carolina toward carbon neutrality, the North Carolina Building Code Council (“Council”) is set to address updates to the state energy conservation code, which is particularly crucial for residential construction. 

What kind of changes to the state energy conservation code are we talking about? New efficiency standards would primarily focus on more energy efficient windows and lighting, as well as thicker insulation. These changes, in turn, would result in a reduction of fossil fuels burned for heating and electricity. With approximately 90,000 new housing units built each year, code changes could make a huge impact on reaching climate change goals.

What comes next? The Council voted last December to hold a public hearing this March to evaluate state energy conservation code changes. Before the public hearing, the updated cost-benefit analysis from the Pacific Northwest National Laboratory is expected to be released, and would set forth how new energy conservation standards can reduce energy bills for consumers. The public hearing is scheduled for 9 a.m. on March 14, 2023, at the Albemarle Building, 325 N. Salisbury Street, Raleigh, NC 27603, in the second floor training room, Room 240. Comments on the proposed rules and any financial impacts will be accepted, and the deadline for comments is April 17, 2023. Following the public hearing, the Council votes in June on the adoption of new standards. After that, a rules-review panel evaluates the new standards, and the N.C. state legislature may also weigh in. Code changes, if approved, would take effect the beginning of 2025. We will report updates as this story develops. --- Stephanie U. (Roberts) Eaton

“The report cautions that inflation, a possible economic downturn and China’s stance on COVID protocols will keep prices high throughout the year.”

Why this is important: As key players in the industry remain concerned about material pricing, this article and the underlying report support those concerns. Prices look to remain high and to continue escalating in key areas, specifically projected to hit electrical materials/contracts. While most price escalations are not projected to be as drastic as some changes we have seen over the last few years, inflation, supply chain issues, and transportation costs will keep material prices high with the potential to rise even more. Everyone involved in the construction industry should continue to evaluate their contract forms and actively negotiate their contracts on new projects to ensure owners, contractors, subcontractors, and suppliers all have adequate protections from unanticipated or exorbitant price increases. --- Steven C. Hemric

"New Mega Grant program, created by the President’s infrastructure law will bring massive economic benefits to communities across the nation."

Why this is important: Federal infrastructure funding is coming to North Carolina and Pennsylvania! Recently, Transportation Secretary Pete Buttigieg announced an award of $1.2 billion in grants for nine projects around the country. This includes projects in North Carolina and Pennsylvania. The funding for these projects is coming from the new National Infrastructure Project Assistance (Mega) discretionary grant program.  

In North Carolina, the Biden administration awarded $110 million to the North Carolina Department of Transportation to replace the Alligator River Bridge in Dare and Tyrrell Counties. The Alligator River Bridge is a critical hurricane evacuation route. The bridge will be converted from a swing bridge to modern high-rise fixed-span bridge. Changing the bridge from a swing bridge to a fixed-span is intended to improve travel times because the bridge will no longer have to close the roadway in order to let boat traffic through.  

In Pennsylvania, the Biden administration awarded $78 million to the Pennsylvania Department of Transportation for the Roosevelt Boulevard Multimodal Project in Philadelphia, PA. The project is intended to significantly decrease automobile crash rates on Roosevelt Boulevard, which has the highest crash rates in the city. The goal is to improve safety and accessibility, and to prioritize jobs for economically disadvantaged communities.  

If you are involved in infrastructure construction, and would like help bidding on or reviewing the contracts for these projects, or any other infrastructure construction projects, please contact Spilman’s Construction Practice Group. --- Alexander L. Turner

Kevin L. Carr

Member

Co-Chair of the Labor & Employment Practice Group

mobile 304.389.8026

kcarr@spilmanlaw.com

Kevin L. Carr is a Member and Co-Chair of our Labor & Employment Practice Group. Kevin’s practice encompasses the gamut of traditional labor law issues facing employers, trial work in employment matters, class and collective actions, wage and hour law, and business law. He is well versed in a variety of areas and has extensive experience including:

• Representing employers in the collective bargaining process with labor organizations
• Advising employers during union organizational efforts and elections
• Serving as lead counsel in numerous trials of unfair labor practice charges and appeals to the National Labor Relations Board
• Conducting labor and employment due diligence reviews in connection with mergers and acquisitions
• Representing clients in contract interpretation and discipline arbitrations
• Serving as lead trial counsel in over 200 employment cases in various jurisdictions throughout the United States, including trials in state and federal courts, on a myriad of labor and employment issues
• Serving as lead trial counsel in numerous wage and hour, immigration and employment-related class and collective actions
• Developing strategies for companies dealing with the full array of employment and labor issues, including EEO policies, practices and personnel decisions
• Representing clients in appellate work before numerous state and federal tribunals
• Conduct training sessions for private and public employers on various issues of employment and labor law
• Defending employment discrimination actions before the Equal Employment Opportunity Commission and various state human rights agencies
• Developing a broad range of employment and personnel policies, practices, and procedures, including drug-testing policies
• Developing strategies for employers in connection with layoffs, reductions in force and facility closings
• Represent executives in matters of compensation and contract issues

Kevin was named the Best Lawyers® 2019 "Lawyer of the Year" in the area of Labor Law - Management in Charleston, West Virginia. 

He has long been AV® Preeminent™ Peer Review Rated by Martindale-Hubbell. In addition, he is listed in West Virginia Super Lawyers; was nominated by his peers for inclusion in The Best Lawyers in America® for Employment Law - Management, Labor Law - Management, and Litigation - Labor & Employment Law; and has been recognized by Chambers USA: America's Leading Business Lawyers for Labor and Employment Law.

He received his B.A. and J.D. from West Virginia University. He is admitted to the West Virginia State Bar, Florida State Bar, West Virginia Supreme Court of Appeals, Florida Supreme Court, United States Court of Appeals for the Fourth Circuit, and the United States District Courts for the Northern and Southern Districts of West Virginia and the Middle District of Florida.

In addition to practicing in West Virginia, he is available for consultation in many states – including Florida.