Fundamentals of Construction Contracts

Posted on May 24, 2013 by glmain

Moorestown Construction Contracts Attorneys

The drafting and negotiation of contracts allows construction companies and contractors to specify the obligations and responsibilities of each party, any financial remuneration involved, as well as legal recourse in the event a dispute or breach occurs. When undertaking a construction project, it’s essential that you work closely with a construction contracts attorney throughout the drafting, bidding, and negotiation process. At LaVan Law, our lawyers have assisted numerous clients in using standard contract forms as revised and reissued by the American Institute of Architects (AIA), the Engineers Joint Contract Documents Committee (EJCDC), and the Associated General Contractors of America (AGC).

Standard Construction Contract Forms

The AIA, EJCDC, and AGC, in cooperation with numerous construction associations, created ConsensusDOCS in an attempt to standardize contract forms. Each program has its own unique features, which are described below:

The American Institute of Architects Documents Program

The AIA documents program began in 1857 and is the oldest construction contracts document program in the country. Currently, there are over 40 contract forms available through the AIA program. AIA is popular in part for offering combination documents based on The General Conditions of the Contract for Construction – that is, the A201 keystone form.

The AIA also offers a commonly used form which specifically addresses how an owner will pay an architect – the A101 Standard Form of Agreement Between Owner and Contractor, a form related to the Stipulated Sum and B101 – Standard Form of Agreement Between Owner and Architect. An advantage of using AIA forms is the extent to which they reflect current best practices since AIA reviews its forms every ten years.

The Engineers Joint Contract Documents Committee

Formed in 1975, the EJCDC is now a joint venture involving the National Society of Professional Engineers / Professional Engineers in Private Practice (NSPE/PEPP), the American Council of Engineering Companies (ACEC), the American Society of Civil Engineers (ASCE), and the Associated General Contractors of America (AGC). The EJCDC seeks to provide the best administrative documents necessary for construction projects that include professional engineering services. EJCDC documents are often used in utilities and horizontal construction projects.

ConsensusDOCS Documents Program

The ConsensusDOCS program is the product of a joint undertaking on the part of nearly 40 construction associations. Their efforts have resulted in over 70 construction contract forms. In many cases, ConsensusDOCS are based on AGC standard forms and the Construction Owners Association of America (COAA). However, ConsensusDOCS modifies these forms and grouped them into specific categories related to general contracting, construction management, design, program management, and subcontracting. A three-way agreement form – the ConsensusDOCS 300 – Standard Form of Tri-Party Agreement for Collaborative Project Delivery – is also available through ConsensusDOCS.

Undertaking a Construction Project? Contact LaVan Law

Construction contracts can be quite complicated and involved. Each of the three groupings of construction contracts described above offer certain advantages and disadvantages. Working with an experienced construction contracts attorney can help you sort through what will work best for you.

To learn how we can help you, contact Moorestown construction contracts attorneys at LaVan Law today.

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Protecting Intellectual Property Rights at Home and Abroad

Posted on May 16, 2013 by glmain

Moorestown New Jersey Business Law Attorneys

Fighting patent and trademark infringement in foreign countries begins with an understanding of how to protect your intellectual property at home and how doing so can help you in the international marketplace. While filing for a patent with the United States Patent and Trademark Office (USPTO) will not protect your invention in other countries, doing so carries certain advantages when filing for an international patent under the Patent Cooperation Treaty. Similarly, filing for trademark registration with the PTO can facilitate an international application for trademark under the Madrid Protocol.

Filing for an International Patent

An international patent can be obtained by:

  1. Filing for a patent in each target country
  2. Filing for a patent with a regional patent examining authority
  3. Filing for a patent under the Patent Cooperation Treaty (PCT)

While not every country in the world is a signatory to the PCT, to date, over 140 have signed the treaty. Additionally, if you file for an international patent under the PCT within a year of registering your patent with the USPTO, you can use the filing date of your US patent for your priority date under the PCT. Doing so allows you to delay filing directly in each target signatory country for up to 30 or 31 months after your USPTO patent application. This can buy you (or your company) valuable time in developing marketing and supply chain strategies.

Registering Trademarks in the International Marketplace

Registering a trademark internationally is helped greatly by the Madrid Protocol, the European Union’s Community Trade Mark, and Africa’s African Intellectual Property Organization. In order to protect your trademark at home, it’s important to first register your trademark with the USPTO.

You can conduct a trademark search free of charge through the USPTO’s website, avoiding unwanted allegations of trademark infringement after you’ve printed marketing brochures and company logos. Once your trademark is registered domestically, you can then register your trademark through the Madrid Protocol or any other applicable organization representing countries in which you intend to do business.

Protecting Your Company’s Competitive Advantage

Protecting a company’s intellectual property is essential in today’s global marketplace. While there has been an attempt on the part of other countries, particularly China, Taiwan, and Korea, to reduce piracy and knock-offs, problems still persist. A failure to protect your intellectual property could adversely effect your position overseas while placing financial strain on your business at home.

If you have questions regarding the options available to you for protecting your intellectual property at home and abroad, contact Moorestown business law attorneys attorneys at LaVan Law today.

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Collective Bargaining and the Employee Retirement Income Security Act

Posted on April 17, 2013 by glmain

Moorestown Employment Law Attorneys

Collective bargaining involves a number of legal issues employers and employees should be aware of before entering into negotiations. For example, under the terms of the Employee Retirement Income Security Act, employers are required to contribute to employee retirement benefits. While not readily apparent at first sight, the implications of ERISA can be far-reaching in regard to terminations, withdrawals, bankruptcy proceedings, compliance proceedings, and statutory and contractual obligations.
Companies that do not understand – or ignore – their legal obligations under ERISA can find themselves facing unwanted legal complications, penalties, and fines. As a result, administrators of multi-employer plans can find themselves facing legal action over questions of ERISA compliance and disputes concerning pension benefits.

Government Compliance, ERISA, and Privately Funded Pension Plans

In order to provide a measure of oversight regarding employer funded pension plans, ERISA created the Pension Benefit Guaranty Corporation (PBGC). The PBGC, acting as an independent governmental agency, is tasked with promoting the maintenance of privately funded pension plans. The PBGC is supposed to ensure companies maintain timely, uninterrupted payments of pension benefits while providing insurance protection in cases of failed pension plans.

While the PBGC provides some measure of insured protection for pension benefit plans, failure on the part of a multi-employer plan to adhere to its contractual and statutory obligations can result in fees and other financial penalties. Plan administrators who fail to comply with ERISA regulations governing contributions and withdrawals face serious legal issues and sanctions as a result.

Here, the issue isn’t necessarily one of intent. The formulas used to determine contributions and withdrawals require complex calculations. For example, how contributions are determined and their amortized value may be the subject of a dispute. In other cases, withdrawal liability may be questioned. In each instance, complex calculations must be undertaken when defending multi-employer plan administrators.

Contact Moorestown Employment Law Attorneys at LaVan Law

If you are an administrator for a multi-employer plan and have questions regarding issues related to ERISA and collective bargaining agreements, contact Moorestown employment law attorneys link to at LaVan Law today. We can review your rights and obligations under the law and help you avoid unwanted legal complications.

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Rebuilding Your Business – The Flood Hazard Emergency Rule

Posted on April 10, 2013 by glmain

Moorestown Business Law Attorneys

In January of 2013, Governor Christie signed into law a number of emergency regulations needed to adopt the Federal Emergency Management Agency’s (FEMA) Advisory Base Flood Elevation (ABFEs) maps. As a result, the maps adopted now serve as the rebuilding standard for the state of New Jersey. Additionally, these new regulations streamline processes and procedures for businesses interested in rebuilding. Of particular interest for businesses in this regard are the requirements related to construction, relocation, and elevation of structures in flood hazard zones.

After Hurricane Sandy – FEMA’s Advisory Maps and Flood Insurance

FEMA’s Advisory Maps provide businesses with information that provides for a better risk assessment regarding the location and construction of their business. On one hand, this means businesses have a chance to prepare for floods while simultaneously reducing risk associated with flood zones.

On the other hand, due to reforms to the National Flood Insurance Program, businesses that choose not to adopt FEMA’s standards will pay increased insurance premiums as a result. In this regard, the action taken by Governor Christie helps businesses reduce their recovery costs by taking steps to ensure rebuilding efforts comply with FEMA standards, thereby avoiding increased insurance costs.

Reducing the Cost of Flood Insurance Premiums

FEMA offers the following illustration of how adopting its standards will reduce flood insurance premiums. Suppose a business owner’s store is located in an “A zone” at four feet below the base flood elevation. As a result, the business will be reclassified as a higher threat. Consequently, the business property will be given a higher risk rating, increasing the owner’s annual insurance premium up to as much as $31,000. Alternatively, if the business owner rebuilds according to FEMA guidelines and standards, his annual premium would be somewhere in the neighborhood of $7,000. Further, if he rebuilds two feet above the base flood elevation and adopts the new construction standards, his annual premium would be roughly $3,500.

Wet Floodproofing and the Rebuilding of Businesses after Sandy

In addition to the changes discussed above, the Department of Environmental Protection (DEP) has adopted a number of emergency provisions related to the rebuilding business and non-residential buildings. Perhaps the most important in this regard is the decision to allow what is referred to as “wet floodproofing.” Wet floodproofing means a building is constructed to structurally take on water. In urban areas such as Hoboken and Jersey City, wet floodproofing allows for quicker rebuilding at lower costs.

If you own a business in an area impacted by hurricane Sandy and have questions regarding flood insurance and rebuilding efforts, contact Moorestown business law attorneys at LaVan Law today.

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Toxic Site in Burlco Remains Troubling

Posted on March 20, 2013 by glmain

When the U.S. District Court for the District of New Jersey denied Lockheed Martin Corporation’s motion to dismiss claims against it for a multitude of environmental violations, the ruling opened the door for possible relief for several Moorestown families impacted by tainted groundwater and contaminated soil. Now, with the lawsuit proceeding, the case could potentially take on class action status. Click here to read more….

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Age Discrimination in a 24/7 World

Posted on March 14, 2013 by glmain

Moorestown Age Discrimination Attorneys

Anyone who has worked in corporate America is all too familiar with layoffs and downsizing. Older Americans, those in their mid-forties and older, know how difficult it can be to find a new job, certainly a new job with the earning potential of one’s previous one. On one level, employers will justify their decisions to hire or fire certain employees based on considerations of “redundancies,” “increased efficiencies,” or “a change in corporate direction.” The fact that many of the people let go or passed over in hiring decisions happened to be older is chalked up to coincidence. So, if there is no overt evidence of age discrimination, what can one do?

Age Discrimination – Recognizing Patterns of Discrimination

Age discrimination is a violation of Title VII of the Civil Rights Act of 1964 as amended by the Age Discrimination in Employment Act of 1967 (ADEA). As a result, employers who deny opportunities, fire, or refuse to hire employees based on their age are in violation of the Title VII. Since most employers have legal departments and are fully aware of what Title VII requires, age discrimination is often subtle. How, then, can one establish that one’s been a victim of age discrimination?

Regardless of what steps an employer might take to conceal age discrimination, it’s almost impossible to avoid leaving a paper trail. Here, patterns begin to emerge regarding who is promoted, who is fired, and who is hired. By reviewing HR documents, one can begin to see how older employees are routinely denied promotions, being hired, or on the receiving end of layoffs. Concealing patterns of discrimination are, in this sense, difficult to hide or explain away.

Bringing an Age Discrimination Lawsuit against an Employer

The fact is, we’re entering a “Brave New Economy” where technology and information systems will radically change the workplace. This means older Americans could find themselves out of a job at a time when employers are only too eager to hire younger people at a lower salary and who represent less of a cost in terms of insurance and other benefits. This is particularly concerning given the fact that people over the age of 45 are unemployed longer than younger workers. And, even though research has shown there is no relationship between job performance and age, older Americans will continue to experience overt and subtle forms of age discrimination.

If you believe you’ve been a victim of age discrimination, collect all relevant documentation pertaining to your case – emails, performance reviews, voice mails, and job postings. Next, talk to an experienced employment law attorney before contacting the EEOC or your HR department.

Don’t assume you don’t have a case – contact Moorestown age discrimination attorneys at LaVan Law today.

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Can a School District Fire a Teacher based on Facebook Postings?

Posted on February 20, 2013 by JLaVan

Moorestown New Jersey Employment Law Attorney

The place of social media in the everyday lives of people has raised a number of legal and ethical issues employers and employees are not always prepared for. In the case of Jennifer O’Brien, a First Grade teacher at the Number 12 Elementary School in Paterson, New Jersey’s school system, comments she made on her Facebook page led to her getting fired. Frustrated with being hit by students, having property stolen from her, and inaction on the part of the school principle after submitting disciplinary reports, she posted the following comment on her Facebook page:

“I’m not a teacher – I’m a warden for future criminals.”

When her comments were discovered, her principle and some of her students’ parents claimed they were offensive. O’Brien was charged with “conduct unbecoming a teacher,” and fired.

Emerging Case Law, Government Workers, and the Right to Free Speech

At first glance, one might be tempted to think Ms. O’Brien’s First Amendment right to free speech was infringed upon – especially since she is a public employee. In fact, Ms. O’Brien appealed her case precisely on these grounds, arguing that the school district violated her rights by trying to deny her her right to free expression.

Free expression in the work place, however, is limited by the Pickering Test, which states the following:

  • A public employee’s speech is protected when he or she comments on “matters of public concern”
  • If a public employee’s comments are not on a topic of public concern, they are not protected
  • If a public employee’s comments are on a topic of public concern, the employer must demonstrate that they are disruptive to the employer’s operations.

Facebook Comments, Free Speech, and the Termination of a Teacher

In the case of Ms. O’Brien, Administrative Law Judge Ellen Bass ruled that O’Brien’s comments were not a matter of public concern. Additionally, the court ruled that her comments were disruptive to the operations of the school. As a result, the court ruled the school’s interest in maintaining the orderly operation of its schools superseded O’Brien’s right to make the comments she did.

While the ruling is controversial, deflating the notion of “what is of public concern,” it underscores the importance for exercising caution when using social media. While employers should have written policies regarding the use of social media, employees shouldn’t assume they couldn’t be fired for what they say online.

Contact Employment Law Attorneys at LaVan Law

Regardless of whether you’re an employer or an employee, if you’re facing legal issues surrounding the use of social media, contact Moorestown employment law attorneysLaVan Law today.

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Negotiating Business Mergers in 2012

Posted on February 4, 2013 by JLaVan

Moorestown Business Mergers Attorneys

Are you considering how to reposition your company within the market? Perhaps you’re considering buying another company to strengthen your brand or add functionality to your core business. If so, the prospect of a merger or acquisition may have crossed your mind. Legally, mergers and acquisitions involve a number of financial, tax, and contractual issues that must be carefully prepared and negotiated. Here, it’s important to determine what a company is legally bound to honor in terms of its vendor agreements, performance contracts, real estate deals and leases, insurance, and licensing. Additionally, whether the company is a S-corporation, C-corporation, or limited liability company may have implications for how your company is structured and the taxes owed after a merger or acquisition.

Review of Intellectual Property Portfolios and Mergers and Acquisitions

Perhaps the most important part of mergers and acquisitions is the status of a company’s intellectual property. For example, acquiring a company to enhance products or add a new line of business requires a due diligence review of the company’s intellectual property portfolio: are there patents that haven’t been approved? Have pertinent trademarks been registered? Are there patents that are set to expire? Are there licensing agreements that need to be reevaluated? A failure to properly evaluate a company’s intellectual property could create unwanted liability for the new company.

Compliance and Mergers and Acquisitions

State and federal regulations must also be taken into consideration in mergers and acquisitions. A failure to maintain compliance could mean your company runs afoul of anti-trust laws, not to mention the tax implications of asset and debt transfers. In this regard, it’s important to work with experienced business law attorneys who can provide a thorough review of the following kinds of issues:

  • Vertical mergers
  • Market extension mergers
  • Horizontal mergers
  • Conglomeration mergers
  • Compliance with the Sherman Act
  • Shareholder agreements
  • Product extension mergers
  • Employee and executive compensation contract
  • Franchise agreements
  • Licensing agreements
  • Business valuations

Contact Moorestown Mergers and Acquisition Attorneys

If you’re considering a merger or acquisition, contact Moorestown business law attorneys at LaVan Law today. We can conduct a thorough review of your company and discuss how best to protect yourself against unwanted liability in mergers and acquisitions.

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Ensuring Workplace Investigations Remain Ethical

Posted on January 11, 2013 by JLaVan

Moorestown Workplace Law Attorneys

Employers often find themselves in legal trouble over allegations of harassment, discrimination, or wrongful termination due to a failure to set forth or abide by policies clearly explained to employees. And, while to date the courts have not treated employee handbooks as contracts, they certainly hold employers accountable for what they say – and what they don’t say. Here, a failure to state a clearly defined procedure for handling complaints against one’s supervisor, discrimination, sexual harassment, use of company computers, or other matters invites legal liability. Why?

The Absence of Clearly Articulated Policies and Legal Liability

When employees are informed of what they are expected to do in regard to their job duties or when they encounter problems in the workplace, clear direction has been provided for them. As such, an expectation has been established which the employee cannot now claim he or she was unaware of. However, when a company fails to provide training or chooses not to implement certain protocols and procedures, it becomes increasingly difficult for companies to argue an employee was not subjected to arbitrary or capricious treatment. In other words, a lack of policy leaves employers exposed to allegations of discriminatory behavior.

Policies and Workplace Investigations

For these reasons, it’s essential that employers follow their own state policies regarding workplace investigations. If you have policies in place for the escalation of problems, use of performance improvement plans, or requirements for disciplinary action, it’s crucial that every effort is taken to follow them. Departure from stated protocols and procedures invites allegations of capricious treatment and the denial of due process for an employee as promised by an employer in its handbook. Consequently, if an employee complains about sexual harassment and HR chooses to circumvent established procedures for dealing with the problem, it makes it that much easier for the employee to establish his or her case.

Objectivity, Ethical Workplace Investigations, and Unwanted Lawsuits

It’s important for employers to realize decisions leave a paper trail. Whether it’s email, employee files, copies of letters or client communications, how an HR department handles a workplace investigation will leave a paper trail. Consequently, any investigation that directly or indirectly involves the very people an employee is complaining about will compromise the integrity of the investigation. For example, asking a supervisor accused of creating a hostile work environment to secretly evaluate an employee’s complaints or the documentation he or she has provided invites an accusation of undue prejudice.

Consequences of Unethical Workplace Investigations

If an employee decides to contact the Equal Employment Opportunity Commission (EEOC), you could be subject to a full-scale investigation of your company’s practices. At the very least, you could find yourself incurring expensive legal costs while trying to avoid “collateral damage” involving your workforce.

If you have concerns about how to maintain and ethical investigation into problems in the workplace, email Moorestown, New Jersey workplace law attorneys or call 856-235-4079 at LaVan Law today.

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Employee Privacy in the Workplace

Posted on December 3, 2012 by JLaVan

Moorestown Employment Law Attorneys

What are the legal limits of an employee’s right to privacy in the workplace? Can an employer use tracking software to monitor what an employee does on his or her computer? Can an employer capture screen shots of password-protected material on an employee’s Facebook account? What about personal emails – are these considered private? And what about phone calls at work? Can an employer listen in on or record an employee’s conversations on company telephones?

Privacy Rights for Employees are generally Limited in the Workplace

To date, the privacy rights of employees have been limited when it comes to the workplace and using company property. For example, the courts have upheld computer monitoring on the principle that an employee does not have an expectation to privacy while working on company property or on company time. As such, employers can use software that monitors internet use or records keystrokes.

This means an employer can monitor an employee’s use of a computer in real time, recover data indicating what websites an employee visited, or check a terminal’s log in and log out data. If keystroke software is used, an employer can recover information that indicates what an employee wrote in an email, business memo, or other document produced on a company computer.

Company Phones and Employee Privacy

In most cases, employers are allowed to monitor an employee’s company telephone. Under the federal Electronic Communications Act (18 USC 2510), phone calls with out of state clients and other business-related calls can be monitored. In cases involving personal calls, employers are generally required to stop monitoring once it’s clear that a call is of a personal nature.

However, if an employer institutes a policy prohibiting personal calls on company phones and employees have been properly informed regarding the policy, employees risk having their personal calls monitored if they violate the policy and take personal calls on company phones. This also means employers can pull records on an employee’s phone to see what numbers were called and how long each call lasted.

The case law governing privacy and company-provided cell phones is still evolving. However, the Supreme Court ruled in City of Ontario v. Quon that legitimate, work-related interests provide a defensible reason for an employer to gather information about what a company cell phone is used for.

Email, Personal Mail, and Employee Privacy

In the vast majority of cases involving email and company computers, employees do not have a right to privacy. Here, the thinking seems to be that if an electronic mail system is owned and used by a company, then it has a right to review its use and its contents. This means that employers have a right to monitor email sent to and from an employee’s computer terminal.
However, the New Jersey Supreme Court ruled in Stengart v. Loving Care Agency, Inc., 2010 WL 1189458, that emails involving the attorney-client privilege are protected. As such, if an employee is engaged in a lawsuit involving his or her employer and uses a company computer to email their attorney, employers cannot claim they have a right to recover or read said emails.

Is Your Company in Compliance with the Law? Contact LaVan Law Today

In many cases, employers can avoid unwanted legal complications involving privacy in the workplace by clearly articulating company policy regarding the use of company phones, email accounts, computers, and corporate smart phones. If you have questions or concerns regarding your company’s potential exposure to legal liability involving employee privacy rights, contact Moorestown employment law attorneys at LaVan Law today.

Posted in Employees and Social Media, employment law | Tagged | Leave a comment