Before You Sell Your Home, Know the Law

July 16th, 2009 at 08:55pm Under Construction Law

There’s more to selling a home than putting up a “For Sale” sign and waiting for people to make offers. If want to sell your home, you need to be aware of the many local and state laws and various regulations attached to selling property. You have be knowledgeable about real estate contracts and know every step involved with regards to inspection, financial considerations, and legal paperwork.

For a real estate contract between two parties to be legal, for example, it must have the following elements:

1) At least TWO parties of sound mind in agreement of the contract – the buyer and the seller

2) Legal identification to verify legal signatures on all paperwork

3) The correct address of the property for sale

4) All agreements with regards to the sale and promises of payment made in writing and signed

5) Unqualified understanding between the buyer and seller so each is aware of payment schedules and other considerations

Coming to an understanding with a potential home buyer is one thing. When you consider going the For Sale By Owner route, you also need to be aware of the many laws attached to selling a house. Local and county laws may vary according to where you live, but there are at least twelve worth researching before you put up your sign:

Seller Disclosure Laws – By law, you are required to inform any potential buyers of damage or other problems with the home that may impact its value in the future. If the house will be in need of a new roof in a year, or if there are cracks in the foundation that need repair, you are obliged to let buyers know.

Lead Base Paint Disclosure – Similar to the Seller Disclosure, if lead-based paint has been used in your home, you are required to inform all potential buyers of this.

Federal Fair Housing Laws – In accordance with Title VIII of the Civil Rights Act, it is illegal to discriminate against a potential home buyer based upon race or color, gender, creed, nationality or handicap. These laws prevent refusal of a sale or price adjustment of a home based upon these factors.

State and Local Housing Laws – Your particular region may have specific laws relating to the sale of homes in the area. It is highly recommend to research any possible regulations that may affect your ability to sell on your own.

Advertising and Marketing Laws – If you plan to take on the advertising of your home sale by yourself, you may need to be aware of certain regulations applicable to your area. If you are placing a newspaper or magazine ad, you may be required to disclose specific information about your home. Do your homework!

Real Estate Contract Law – Is the contract you have with your potential buyer valid? Are there any hidden clauses that may come back to haunt you later? Know what your sale contract says and means before it is signed.

Zoning and Local Ordinance Laws – The sale of your home may be subject to various zoning laws and ordinances in your area. For example, a buyer may want your house for a home-based business or for charity purposes, but the laws in your town may not permit that. Research what regulations are applicable to your property before you sell.

Occupancy Laws – Is your home subject to occupancy laws? Can you legally sell your house to more than one family unit? Before you put your house up for sale, make sure you research any occupancy limits and restrictions.

Building Code Laws – Is your home “up to code”? In other words, is the house compliant to all safety and health codes? Have any repairs and remodeling work been done to the house, and if so were they done with the required materials? It is not legal to sell an unsafe home, so make sure any construction done before the sale is completed safely and correctly.

Environmental Rules and Regulations – Is there anything in your home that poses a potential environmental hazard? Is the construction of your home sound and free of asbestos and other harmful elements? Make sure you know what is considered toxic in your area, and that it’s not in your home!

Stigmatized Property Laws – Was your home the scene of a murder or other disastrous crime? Is your home a local legend in that people believe it’s haunted or cursed? It may sound amusing, but sometimes it can be difficult to sell property that has been “stigmatized” by gossip and legend. If your house has such a legacy, it is best to research any disclosure laws that apply to the sale. If somebody was murdered in your home, for example, you may have to disclose that to a buyer.

Governmental Rights and Real Property Laws – Each state has its own laws with regards to the definition of “real property.” It is suggested all potential sellers know how their states interpret what is real property as opposed to “personal property.” This may affect certain appliances in the house to convey with the sale, or property lines. Governmental rights laws may be put into effect if the government is interested in acquiring property for various purposes (i.e. you own a parcel of land where an interstate is to be built). Read up on these laws before you sell.

Selling a home can be a daunting process, made all the more difficult if you are not aware of the many laws in your area that bind you to certain obligations. So before you hang that sign, make certain you are knowledgeable about the implications behind it. Having the law on your side will make for a smoother sell.

How Discovering Law of Attraction Can be Frustrating?

July 16th, 2009 at 02:55pm Under Construction Law

Law of attraction is based on the principle that ‘You Attract What You Want.’ Sadly, none of us attract what we want. Instead, we are getting what we don’t want. Here, reality of life questions the law of Nature. Which is true? Human Life or Nature? Confused. Now the only soul on earth that can reveal you the Ultimate truth is the ‘Great Guru.’ Clad in saffron, these spiritual gurus preach the theory of existence and the theory of life: starting from the story of Creation, they will draw your minds through millions of years and leave your mind completely blank and intoxicated that ultimately you forget what you are.

Why did the love guru fail? They fail simply because they do not teach what they are supposed to, or they do not have the knowledge to impart the wisdom which they are preaching. Their spirituality, in simple words, is “materialism camouflaged” as referred by Paul Damien. The more there are problems on the earth, the happier they are, for they will amass ‘holy’ richness by healing that many problems. Day by day, they become richer, creating more and more insane minds in the world.

Nature will not let them go, for IT is there. Yes, Nature is the only truth, and it will follow its course of action. Where there is void, it will be filled immediately. The void (ignorance) created by the spiritual gurus will be filled with the negative energy present in the nature. The unsatisfied souls, poisoned by the religious negative elements, create disharmony in the society. It spreads to others who are also ‘seeking’ the same spiritual healing for their materialistic problems.

Law of attraction can be constructive, provided you follow the constructive part of it. When Einstein formulated the equation E=MC2, he had not dreamt of an atom bomb. This equation was created to show how energy could be creative. But it is another human being who discovered that it could be destructive too. To get the best results from the law of attraction, you have to follow the constructive path that starts with self-help.

All the fake gurus providing superficial spiritual guidance are facing debunking by many people and lots of books and journals have been published against them. Don’t fall for these fake love gurus for spiritual energy and guidance. Just follow your heart.

Construction Workers on the Skive

July 16th, 2009 at 08:56am Under Construction Law

Construction Health and safety regulations is designed to prevent the site workers from being injured or killed. However, as we all know construction workers can often be very good at making those regulations work to their advantage in other ways. Taking the rules in a literal sense, in some cases, enables these workers to get away with doing less work during the day than they should be doing.

The following amusing story highlights one particular instance of this:

An asbestos removal company was working on a site in America, removing hazardous asbestos from a school building that was due to be demolished. Having carried out an asbestos survey the company had identified large quantities of harmful asbestos that needed to be removed prior to demolition – asbestos fibres can cause lung disease if inhaled.

Now for the amusing bit……

A couple of particularly lazy construction workers, who were particularly well known for trying to skive work wherever possible had been sent up some scaffolding to begin removing the asbestos from piping located high up the side of the school. In most states of America it is law that all construction workers must be anchored to the scaffolding they’re working on to prevent them from falling.As instructed the two men had climbed up the scaffolding, anchored themselves to the structure and began removing the piping. A hour or so later, during break time, the Site Foreman had walked past to check on the tow men’s progress. As expected he found them sitting down atop the scaffolding taking a well-earned break. This was nothing unusual so the Foreman left to continue his rounds. However, when the Foreman returned for a second checkup 4 hours later he found the two men in exactly the same position.  The two men had in fact anchored themselves to the scaffolding, sat down and promptly gone to sleep – the anchor straps the men had used propped them up in a sitting position so it appeared as though they were taking a scheduled break

Both men were fired on the spot but prior to leaving they were asked why they had committed such an obvious act of insubordination. They replied that they thought as long as they were anchored to the scaffolding they were doing what they were told and they would be able to stay on the job.

Sometimes the law is best left to the lawyers.

A Historical Look at Building and Construction in Los Angeles

July 16th, 2009 at 02:56am Under Construction Law

The City of Los Angeles, situated on the nation’s West Coast, surrounded by the San Bernardino Mountain Range, is the largest city in California. The city has undergone a major transformation since it was established in 1781 by Spanish governor Felipe de Neve. Building and construction has proceeded at a somewhat haphazard pace over the years. LA’s downtown, in particular, is currently undergoing something of a renaissance, with many historic buildings being converted into expensive lofts.

The majority of major downtown department stores once operated out of independent buildings in the area. Many were closed in the 1970’s and 80’s, as there was a movement away from stand-alones and into modern office parks and shopping complexes. With the city’s westward shift of the commercial center, downtown LA was lacking much nightlife until more recent times.

Despite the fact that the building and construction process proceeded relatively quickly, the LA City Council sped things up by enacting a reuse ordinance, thus making it simpler for developers to convert vacant old office buildings to high-class lofts and exclusive apartment complexes. A slew of professionals, fed up with the city’s notorious rush-hour gridlock problems, were quick to move in.

The number of residents in downtown LA has blossomed since the early 2000’s, in part due to all the building and construction, with a greater than 15 percent increase to approximately 28,000 persons. This amount surpassed estimates and, with a higher number of housing units being built, has pushed the total count to potentially be more than 40,000 by the end of 2008. However, the number of available jobs in the area has fallen to 418,000, down from an estimated 605,000 a decade ago.

In 2007, the City Council approved major changes to the downtown’s zoning rules. Muchly desired by Mayor Antonio Villaraigosa, the changes facilitate more building and construction by allowing bigger and more closely-packed developments. In addition, builders who withhold 15 percent of their units for low-income residents are not governed by certain code requirements and living spaces can be constructed that are over 30 percent larger than current zoning laws call for.

Interestingly, a number of the core downtown buildings were built way back in the turn of the century. Between then and the late 1050’s, a rigid zoning law kept building heights at under 150 feet, causing a fairly homogenous skyline. Reportedly, it was done not for fear of earthquakes, but to maintain a uniform height in the area and to avoid New York City style congestion. None of these laws are in effect today, as a skyline filled with tall office buildings bears evidence to.

Bronx Construction Accident Lawyer: Your Perfect Guide

July 15th, 2009 at 08:56pm Under Construction Law

The rate of injury for workers in the construction industry is approximately 60 percent higher than the overall average for all workers. Recognizing that hazards exist and planning ahead to properly control or eliminate them, helps protect the working men and women of the construction industry and saves businesses time and money. With all of the recent crane accidents in NYC, Bronx construction accident lawyers are making a conscious effort to bring awareness to the subject.

In New York, there are many safety regulations governing construction sites. If companies break these rules, and a worker is injured, the company may be liable for medical bills, lost wages, pain and suffering and other expenses arising from the construction accident. The death rate in the construction industry is about 15.2 deaths per 100,000 workers. The leading causes of death among construction workers are falls from elevation, motor vehicle crashes, electrocution, machines, and stuck by falling objects. The only two industries that have a higher death rate include mining and agriculture.

A construction accident refers to any accident involving a construction worker or bystander that occurs on a construction site. When a construction site accident happens, the owners, architects, insurance companies, and manufacturers of equipment may be held responsible for inadequate safety provisions. We represent individuals who have been injured as a result of construction accidents. Occupational Safety and Health Administration (OSHA) regulations protect most people at their jobs, but special laws have been introduced to protect the men and women who work in the construction industry. There are special statutes that are designed to protect workers who work on ladders, scaffolding, or in high places. Often the owner or general contractor is held to be “strictly liable” for all injuries sustained. This means that the injured party is not responsible for causing his or her own injuries, no matter how the accident occurred.

New York City and the surrounding areas are benefiting from a construction boom, which is great news for builders, architects, and others in the construction industry. However, the huge amount of work means that timelines and budgets are being compressed and skilled workers getting harder to find. This means that sometimes corners are cut or inspections aren’t done properly, which is proving dangerous to construction workers. Being in an accident is overwhelming enough, and the uncertainties about your health and finances are the last thing you need. Don’t bear through another sleepless night worrying about insurance companies and what may happen and contact our Bronx construction accident lawyers.

Bronx construction accident lawyers recognize the potential sources of negligence and liability, such as workers’ compensation benefits, third-party insurance claims against contractors, subcontractors, and other employees, defective and dangerous product lawsuits against equipment manufacturers, designers, and distributors, other negligence claims, there are specific laws surrounding construction site accidents and workplace accidents. Whether you suffered an injury caused through negligence or a loved one suffered accidental death at a construction site, we have the experience to help you pursue maximum compensation and justice.

Common Liabilities Determined by Construction Liability Lawyers

July 15th, 2009 at 02:56pm Under Construction Law

Construction sites are places where accidents commonly occur because of the presence of people and equipment. In most cases accidents resulted to injuries.Some of the most serious construction liabilities are blindness, amputation, head injuries, fractured bones, scarring and disfigurement.The employees working in the construction sites have the right to work in a safe environment free from all the hazards mentioned above. They should increase the amount of safety measure to ensure protection for the workers.If your one of the workers who suffered from injury on the construction site, you are entitled to report a personal injury claim against your employee.The presumed negligence on their part will give you a change to recover monetary compensation for your injuries, loss wages and other related expenses.Types of Construction Site AccidentsNegligence of employers and contractors to ensure protective measures in construction sites created a hazard for the employees. Construction accidents come out in different forms.Following are construction related accidents•    Fire and explosion•    Technical error•    Electrocution•    Negligence•    Lack of safety gear and equipment•    Unsafe ladder breakage•    Faulty machines•    Workers hit by falling debris•    Unnoticed flooring holes•    Industrial gases•    Welding accidents•    Crane, forklift and vehicular accidents•    Trench collapse•    Roof related falls•    Scaffolding accidentsConstruction LiabilityGenerally, constructing a building can put a lot of risk to employees. Employers should put extreme safety measures and strict discipline among its worker to lessen the chances of accidents. In most cases construction liability are accounted to employers. The property owners are not only at risk when construction accident occurs. Architects, subcontractor and equipment manufacturers are also involved in the site accident. Each of them has its role and interest in the site.Liable for the construction AccidentsA laborer could file a claim against the employer for the damages he/she acquired while doing their job in the construction site. The employees must be certain that they follow all the restriction implemented to them in the construction sites. You have to pinpoint that the employer/owner, architect, subcontractor or equipment manufacturers are reliable for the accident.Role of Construction Liability LawyersThe benefits you will receive will be provided under the Workers compensation law. The extent of the coverage is based on the nature of the injuries. Oftentimes the benefits that you will receive are not enough to cover all your expenses and lost wages. A construction liability attorney can help you review the details of your situation to avail the maximum monetary demands for your claim.There are several factors to be considered in recovering damages. The law is different from state to state. Although there are no set amounts a victim can expect to receive, a construction liability attorney can calculate the damages he might be rewarded. If general constructors, architect and owner denied the obligation for the accident, Construction liability lawyer will assist you for further legal litigation processes.For injuries and claims related to construction liability, you can take the services of our experienced Los Angeles personal injury lawyers. For more information, you can visit our website and avail of our free case analysis.

Construction Accidents

July 15th, 2009 at 08:56am Under Construction Law

Despite the Department of Work and Pensions stating that fatalities have been cut since the 1970’s by two thirds; 250-300 construction site workers are still killed every year and 35 million working days are lost each year to occupational health issues. Showing the number of deaths and injury in the workplace remains at an alarming high number.

The main cause of accidents on construction sites are:

• Scaffolding Accidents

• Lifting equipment failure

• Welding accidents

• Trench Collapses

• Falls from roofs

• Crane Accidents

• Forklift truck accidents

• Electric Shock Injury

• Trench collapses

• Accident caused by fire or explosion

• Road Traffic Accident

• Compressed Gases Accidents

• Falls from ladders

• Unsafe safety harnesses

• Electrocutions

• Accidents from faulty machinery

• Power tool accidents

• Holes in flooring

You are six times more likely to be killed as a construction employee than an employee of any other occupation. Working at a construction site is one of the most dangerous occupations in the UK.

If you are injured on a construction site, you should take action as soon as possible, including:

• Reporting the accident immediately

• Seeking immediate medical treatment on site or go to a hospital or GP as soon as possible

• Obtaining names telephone numbers and addresses of any witnesses

• If possible make sure the accident scene is photographed

• Identify the main/principle contractor/s or subcontractors on the job site responsible your injury

• Do not make written statements or discuss you accident with anyone without first speaking to a qualified personal injury specialist.

There have been 2,800 fatalities in the last 25 years due to building and construction accidents. Employers have to, by law, protect their employees. Most building/construction workers do not realise that it is within their rights to ask supervisors for regular breaks when using heavy duty equipment. If you feel that equipment needs replacing or feel that health and safety hasn’t been properly addressed you should report it to your employer who can take the necessary steps to make the workplace more safe.

If employers fail to enforce health and safety, they can be left liable for compensation claims.

The workplace should be kept in a safe and tidy condition. Suitable workstations and chairs should be provided to employees and floors and corridors should be clean and free from hazards as well as doors and gates, nothing should become an unnecessary obstruction in the workplace that could become a danger to the employees that work there.

All employers are required by law to be provided with any safety wear they require to complete their jobs, such as goggles, hard hats, ear guards, dust masks, safety gloves, safety boots or high-visibility jackets.

Also by law, employees are to be highly trained in whatever task they have to undergo, such as operating a fork lift truck, manually handling heavy objects or operating any form of machinery.

If you are currently working in a construction job you should make sure that your employer has explained health and safety to you and that health and safety is being abided by in your place of work to prevent accidents from happening.

New York Construction Accident Lawyers to Help Get Nyc Back on Track

July 15th, 2009 at 02:55am Under Construction Law

Ever since the two crane accidents occurred in New York earlier this summer people have been on edge. New York now has a different feeling when they see construction, which was once of improvement and community. But now it is of fear and reluctance. The crane accidents are examples that things that seem genuine and true can actually be corrupt and sinister. Bribing and fraud are two things that no industry wants to be apart of, however if people accept these actions no one is going to win. These New York construction accidents that killed nine people shows us that there are consequences for our actions. In order to justify these wronged actions, something needs to be done to control the rebellion that is currently going on in New York. New York construction accident lawyers are ready and willing to help anyone who has been hurt in one of these devious accidents.

Fraudulent misrepresentation is something that is not accepted in any arena of business. Then how come in the construction industry has it been going on for decades. Bribing inspectors that get in between what is safe and what is not for the livelihood of the construction workers is something that is not going to be tolerated anymore. The Governor of New York has imposed a new law stating that there will be an increase in civil and criminal penalties for those inspectors who are convicted of bribery or those who have made fraudulent reports. This new law will also increase the punishment for those who are convicted of bribing the inspectors or other shady practices surrounding The new law also sets stiffer punishments for anyone who tries to bribe crane inspectors or otherwise tries to interfere with their work.

The crane accidents not only killed nine people but it also severely inured another worker, devastated the side of an apartment building, and called to question the entire construction industry in New York City. A criminal investigation has been launched and is underway regarding the bribery and fraudulent reports made by the inspectors. New York construction lawyers are getting a lot of inquisitions about what qualifies them to be able to file a suite. What these instances signify is that people are getting hurt by other peoples greed. It is only fair and right for those who have wronged the public to pay for their consequences.

If you or a loved one has been involved in a New York construction accident, contact a New York construction accident lawyer. For the heave the knowledge and expertise to stand up to large corporations as well as the government. New York construction lawyers are ready and willing to discuss your case with you and on a contingency basis. The construction industry in New York needs to get back on the right track and by filing a lawsuit with a New York construction accident lawyer you are doing your part to help the city.

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS: ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS

July 14th, 2009 at 08:56pm Under Construction Law

EMPLOYMENT LAW BASICS FOR HAWAII EMPLOYERS:  ILLINOIS RULING HIGHLIGHTS THE IMPORTANCE OF POLICIES AND TRAINING TO HAWAII EMPLOYERS  

It is well established now under federal Title VII law that an employer is liable for actionable sexual harassment caused by a supervisor with “immediate (or successively higher) authority over the employee.”  However, in cases where the employee does not suffer a “tangible employment action,” such as discharge, demotion, or an unfavorable reassignment, there is an affirmative defense that an employer may raise to avoid Title VII liability and damages.  

Under such affirmative defense whether an employer has an anti-harassment policy is relevant evidence.  Also important is effective supervisory training and training of employees on the harassment policy and complaint procedure.

Training and educational programs for all employees take on an even higher degree of importance under Hawaii state law, HRS Chapter 378.  State law currently is interpreted by the Hawaii Civil Rights Commission (“HCRC”) as mandating strict liability for sexual harassment committed by supervisors. 

While the Hawaii Supreme Court has not addressed the HCRC’s interpretation of HRS Chapter 378 a recent Illinois Supreme Court decision upheld a Illinois Human Rights Commission ruling addressing a regulation similar to the HCRC’s–that an employer was strictly liable for a supervisor’s harassing conduct under Illinois state law even though the supervisor did not even have direct supervisory authority over the Complainant.

The April 16, 2009 Illinois decision will certainly be persuasive authority to a Hawaii Supreme Court faced with interpreting the HCRC’s regulation.  Accordingly, it is critical that Hawaii employers understand the importance of having an effective policy and company-wide training program on not only a defense to a sexual harassment claim, but prevention.

I.          The Importance of Having an Effective Harassment Policy

A.                The Faragher/Ellerth Defense

Having an effective sexual harassment policy and training program will greatly increase the chance of avoiding liability under the affirmative defense for sexual harassment claims recognized by the U.S. Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (“Faragher”) and Burlington Industries v. Ellerth, 523 U.S. 742 (1998) (“Ellerth”). 

Where alleged harassment by a supervisor does not culminate in an adverse (“tangible”) employment decision, the employer may avoid liability by showing that: (1) the employer exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer to avoid harm.  “A tangible employment action constitutes a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a decision causing a significant change in benefits.”  Ellerth, supra.

The importance of the Faragher/Ellerth defense was significantly increased by the U.S. Supreme Court’s decision in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

A zero-tolerance harassment policy must fit the environment and employees.  The Ellerth court stated:

While proof that an employer had promulgated an antiharassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense.  The policy should be written in plain English, so that all employees regardless of their educational level or background can understand it … [a] policy should include a clear and precise definition of unlawful harassment so that employees know what type of conduct is prohibited by the policy and will be able to recognize that conduct should it occur.

Accordingly, if the alleged harasser has supervisory authority over the victim, the employer will be held automatically liable for any harassment committed by the supervisor unless the employer is able to successfully raise the affirmative defense. 

B.        Tips On Drafting a Zero-Tolerance Policy and Complaint Procedure. 

(1)               Write in simple English.

(2)               Include a clear definition and examples of prohibited conduct and make it broad enough to prohibit all forms of harassment.

(3)               State the company’s “zero-tolerance” philosophy in the policy regarding all forms of harassment,

(4)               Designate at least two specially trained managers who will be responsible for investigating harassment complaints for the company. 

(5)               Determine the complaint procedure that will be used to investigate complaints of harassment by supervisory employees, co-workers and outsiders. 

(6)               Provide a “clear chain of communication,” allowing employees to step outside of the normal hierarchy in the event the supervisor is the harasser and consider having a toll-free number employees can call.

(7)               State that employees who report prohibited conduct will be protected from retaliation.

(8)               State that the employer will promptly investigate the matter in an objective and discrete manner.

(9)               Provide the form of disciplinary action to which offenders can expect to be subjected.

(10)           State that the employer will also take remedial action.

(11)           Train your management employees and line employees on the policy and procedure. 

(12)           Have each employee sign an acknowledgment form that they have received a copy of the policy and procedure, and that they have received training on the harassment policy. 

C.        The Faragher/Ellerth Defense and Hawaii Law

Like Title VII, the Hawaii Employment Practices Act prohibits discriminating against individuals in virtually all aspects of employment.  However, it remains an open question whether an employer, under Hawaii state law, can assert the Faragher/Ellerth affirmative defense. 

Currently, under regulations promulgated by the HCRC, the state agency charged with the enforcing and interpreting Hawaii’s Employment Practices Act, strict liability would apply to a supervisor’s harassment of a subordinate regardless of whether tangible action is taken:

§12-46-109 Sexual harassment.

(a)        Harassment on the basis of sex is a violation of chapter 378, HRS. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of harassment of a sexual nature constitute sexual harassment when:

(1)        Submission to that conduct is made either explicitly or implicitly a term or condition of an individual’s employment; or

(2)        Submission to or rejection of that conduct by an individual is used as the basis for employment decisions affecting that individual; or

(3)        That conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

(b)        In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.

(c)        An employer shall be responsible for its acts and those of its agents and supervisory employees with respect to sexual harassment regardless of whether the specific acts complained of were authorized or even forbidden, and regardless of whether the employer or other covered entity knew or should have known of their occurrence. The commission will examine the circumstances of the particular employment relationship and the job functions performed by the individual in determining whether an individual acted in either a supervisory or agency capacity.

(d)       With respect to conduct between employees, an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action. An employee who has been sexually harassed on the job by a co-worker should inform the employer, its agent, or supervisory employee of the harassment; however, an employee’s failure to give such notice may not be an affirmative defense.

D.        Problem Areas for Employers

* Inadequate complaint procedure

* Failure to disseminate policy

* Employer on notice of harassment

 * Failure to promptly investigate

 * Failure to take appropriate disciplinary action

 * Failure to apply it even-handedly

 * Failure to review and revise when necessary

 * Failure to provide training

E.         Illinois Supreme Court Decision a Foreshadowing of Hawaii Law?

In Sangamon Cty Sheriff’s Dep’t v. The Illinois Human Rights Comm’n, Nos. 105517, 105518 cons. (Ill. Apr. 16, 2009), decided on April 16, 2009, the Illinois Supreme Court gave the HCRC direct support of the HCRC’s own interpretation of HRS Chapter 378.

The Sangamon decision holds Illinois employers strictly liable for sexual harassment by any of their management or supervisory personnel, and, as noted by the dissent, “imposes a standard of liability which appears to be without precedent in any jurisdiction of the United States.”

In that case employee Feleccia filed a sexual harassment claim against employer Sangamon County Sheriff’s Department and Ron Yanor, who was a supervisor, but was not Feleccia’s direct supervisor.  The Illinois Human Rights Commission ruled that the Sheriff’s Department was strictly liable for Yanor’s conduct under the Act because Yanor was a supervisor. The Illinois appellate court reversed, and Feleccia and the Commission appealed to the Illinois Supreme Court.

The Illinois Supreme Court reversed and confirmed the Commission’s decision. In a 4-2 ruling, the Illinois Supreme Court agreed that the Sheriff’s Department could be held strictly liable in such circumstances.  The basis of the decision was the plain and ordinary meaning of the statute, which states that “an employer shall be responsible for sexual harassment of the employer’s employees by nonemployees or nonmanagerial and nonsupervisory employees only if the employer becomes aware of the conduct and fails to take reasonable corrective measures.”

According to the Court, the statute is unambiguous” and only excludes “nonemployees” and “nonmanagerial or nonsupervisory employees” from its strict liability standard.  As such, the Court found “[t]here is no language in the Act that limits the employer’s liability based on the harasser’s relationship to the victim.”  The Court rejected the employer’s argument that federal case law should apply to the case.

II.        The Importance of Conducting EEO Training

Of course, in Hawaii the HCRC has merely interpreted HRS Chapter 378’s statutory language to impose strict liability for supervisory harassment.  Unlike the Illinois statute interpreted by the Illinois Supreme Court it is reasonable to argue that Hawaii statutory law is ambiguous and not straightforward. 

Nevertheless, the HCRC is charged with the interpretation and enforcement of HRS Chapter 378 and it does not bode well for Hawaii employers that another state’s high court is willing to impose what some would consider harsh penalties on the employer defendant.  Accordingly, employers in Hawaii should redouble its efforts to train supervisors AND employees regularly on preventing discrimination and harassment in the workplace.  Training should include the consequences of violating company policy.

Training employees reduces the likelihood that inappropriate conduct will be engaged in or tolerated at a level that can create a hostile environment.  See Arquero v. Hilton Hawaiian Village, 104 Hawai’i 423, 91 P.3d 505 (2004) (coworker pinched buttocks of the plaintiff on two occasions); Nelson v. University of Hawai’i, 97 Hawai’i 376, 38 P.3d 95 (2001) (verbal harassment).

Second, in the event that inappropriate conduct takes place, employees who are offended will be substantially more likely to use the employer’s complaint procedure, thereby permitting the employer to remedy the situation and avoid having a lawsuit filed against it.

Lastly, training is a tool for prevention and reducing the potential of supervisory harassment.

A.        Training as a Tool for Prevention

The EEOC’s Policy Guidance on Sexual Harassment states:

An employer should ensure that its supervisors and managers understand their responsibilities under the organization’s anti-harassment policy and complaint procedure. Periodic training of those individuals can help achieve that result.  Such training should explain the types of conduct that violate the employer’s anti-harassment policy; the seriousness of the policy; the responsibilities of supervisors and managers when they learn of alleged harassment; and the prohibition against retaliation.

The HCRC regulations state that “prevention is the best tool for the elimination of sexual harassment.  Employers should affirmatively raise the subject, express strong disapproval, develop appropriate sanctions, inform employees of their right to raise and how to raise the issue of sexual harassment, and take any other steps necessary to prevent sexual harassment from occurring.”  §12-46-109(g).

As part of its settlements against employers, the EEOC and HCRC have chosen mandatory training as one of its primary responses through the use of consent decrees requiring organizations to conduct training and ensure policy compliance.

In 2004, the California Legislature passed Assembly Bill 1825, requiring all employers with fifty or more employees to conduct compulsory sexual harassment training for all of its supervisory employees by January of 2006, thus supporting the EEOC and HCRC’s position that training and education is the best tool for prevention.  Under the California law, the training must re-occur every two years, and all new supervisors brought in after the original round of training must go through the program within six months of their arrival. 

Managers who are aware of the implications of sexual harassment may be less likely to take official action they realize will create vicarious liability for the organization – this may preserve the employer’s right to the Faragher/Ellerth affirmative defense in a case of constructive discharge.  Further, managers who are aware of how to proceed with complaints from employees about harassment are more likely to intervene with an appropriate employer response thus making a stronger showing under the first prong of the Faragher/Ellerth affirmative defense.

Finally, as noted throughout this article training can be an effective tool to combat inappropriate behavior by supervisors and to reduce risks under state law—especially to the extent it is interpreted similar to the Illinois Supreme Court’s decision.

B.                 Training and the Faragher/Ellerth Defense

Conducting training will greatly increase the chance of avoiding liability under the Faragher/Ellerth affirmative defense.  The importance of this defense was significantly increased by the Suders decision, which held that the defense is available in constructive discharge cases unless the plaintiff quits in a reasonable response to an employer-sanctioned adverse action of an official nature, such as a demotion or a cut in pay.

The training of rank and file employees should be documented and if it is to be conducted on a regular basis, can include a certification by the employee that he or she has not been subject to any policy violations since the last training.

C.        Training and Damages Issues Under Hawaii Law

Generally, individuals cannot be found liable for violations under federal law.  Under Hawaii law, however, courts may award unlimited punitive and compensatory damages. 

Significantly, unlike under Title VII individuals can be held liable for violations of Hawaii’s Employment Practices Act.  See HRS §378-1 (defining “employer” to include “any person”) and §378-2 (3) (making it unlawful for any “person” to “aid, abet, incite, compel, or coerce the doing of any of the discriminatory practices forbidden by this part, or to attempt to do so.”); Schefke v. Reliable Collection Agency, 96 Hawai’i 408; 32 P.3d 52, 93-94 (2001) (holding individuals may be found liable under Hawai’i Employment Practices law).

Thus, training employees may alert them to the financial risks they take when they engage in behaviors prohibited by Hawaii law.

D.        Training to Reduce Exposure to Punitive Damages

In Kolstad v. American Dental Association, the Court held that “in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer’s ‘good-faith efforts to comply with Title VII.’”  Accordingly, compliance efforts are both necessary and sufficient to avoid liability for punitive damages.

Roman Amaguin, Esq.; http://www.virtualhawaiiemploymentlawyer.com; http://www.amaguinlaw.com

Irish Construction Insurance

July 14th, 2009 at 02:56pm Under Construction Law

One of the most interesting facts about the Irish Construction industry is that there is no legal requirement for a construction company to hold any from of construction insurance! In fact, the only insurance an Irish contractor is legally obliged to have is basic motor insurance on his/her motor vehicles!

Although there is no legal requirement under Irish law for a contractor to hold adequate Construction Insurance it is extremely important that adequate cover is in place.

One of the most important reasons is the high injury & mortality rate on Irish Construction sites. One major positive of the recent construction boom is the fatality per thousand ratio has fallen in recent years although it is still at an unacceptable level.

For example, in 2001 28% of workplace fatalities were Construction related and the Irish Construction industry is consistently second only to the Irish Agriculture& Forestry Industry.

As many primary contractors require their subcontractors to hold Construction Insurance the reality is that although Construction Insurance is not a legal requirement it is usually a prerequisite to obtaining work on the majority of the countries construction sites so the need for construction insurance is a necessity in everything but law!

Although Construction Insurance is quite a complex field the four main areas of cover are as follows:

• Public Liability Insurance

• Employers Liability Insurance

• Contractors All Risks

• Personal Accident

Public Liability Insurance

Public liability insurance [PL] provides cover in the event that the policyholder is sued by a third party who feels that they have suffered injury or loss as a result of the policyholders negligence (lack of care).

Consider the following examples where Public Liability Insurance will provide cover:

• You run a plumbing company. One day you are called to an office to sort out a problem in their kitchen. Accidentally, you burst a pipe, and flood the office. Your client then makes a claim against you for the damage to their carpet and computer systems which have been damaged by the water.

• You are a building contractor. While walking along scaffolding one of your men drops a piece of equipment which falls to the street, injuring a passing pedestrian. The pedestrian makes a claim against your firm.

Obviously these are very simplified examples and we haven’t discussed the complexities of Products Liability/Liability Law/Duty of Care etc however it should provide a basic understanding of Public Liability Insurance.

Employers Liability Insurance

Employers Liability Insurance [EL] provides cover if any of your employees suffer physical injury or death, and it is proven that as an employer you acted negligently and subsequently could have prevented their loss. If they then decide to pursue you for compensation the insurer will pay the cost of the claim.

Consider the following examples where Employers Liability Insurance will provide cover:

• You run a carpentry company. One of your employees loses a finger while using a chop saw and decides to claim against you for his injury

• You are a scaffolding contractor and are erecting scaffolding around an apartment block. While erecting the scaffolding one of your employees falls and suffers severe bodily injury. He decides to claim against your firm.

Please note that Public & Employers Liability is offered ‘hand in hand’, that is when arranging construction insurance you will need to arrange both Public Liability & Employers Liability Insurance together [Also known as Combined Liability Insurance] as Employers Liability Insurance is not available on a ‘Stand Alone’ basis..

Contractors All Risks Insurance

Contractors All Risks insurance (also known as Contract Works insurance) is an insurance policy specially designed for builders and a number of other trades working at a contract site. Contractors All Risks insurance can include cover for contract works, own plant, hired-in plant and employee’s tools. The main part of the contractors all risks insurance is the contract works section which provides cover for the property being worked on (e.g. new house, etc.). However, cover for the existing property is excluded (e.g. the existing structure when building an extension) and must continue to be insured under its own insurance cover.

Consider the following examples where Contractors All Risks Insurance will provide cover:

• You are a building contractor and are building a house for resale. So far you have spent €200,000 on materials and labour. The property catches fire and is destroyed before it has been completed. • You are groundwork’s contractor and are presently digging foundations for a new housing development. Naturally you leave your excavator on site until the contract is completed however one night your excavator is stolen.

Personal Accident Insurance

Personal Accident Insurance [Also known as Income Protection Insurance] is highly recommended for a sole traders, business partners and company directors as a combined liability policy does not cover any injury caused to a sole trader/business partner while it is extremely difficult for a company director to sue his/her own company. A policy can be tailored to your exact needs and policies include a tax free monthly benefit, a lump sum [capital benefit] and hospital cash.

Consider the following examples where Personal Accident Insurance will provide cover:

• You’re a self employed carpenter with no employees. You cut your hand and are unable to work for eight months. As you have Personal Accident cover you receive a tax free benefit of €1,500 after one month and continue to receive this amount until you return to work.

• Although Personal Accident/Income Protection insurance is no substitute for full time earnings it will provide you with an income if you are unable to earn and it will reduce your financial worries at a time when your recovery should be your number one priority.

Machinery & Plant Insurance

Machinery & Plant Insurance is normally arranged on a case by case basis and provides Accidental Damage Fire & Theft Cover on Machinery. This policy is normally taken by contractors who wish to cover a specific number of items.

Health & Safety Executive

In Ireland the HSE [Health & Safety Executive] have the ultimate authority over Construction Sites and have the ability to close a site if they feel it is a safety hazard. Their primary initiative is the ‘Safe Pass’ – a one day site safety training programme.

Who needs to do Safe Pass awareness training?

Safe Pass is a one-day safety awareness programme aimed at general construction workers, craft workers and “on site” security personnel in the construction industry. The aims of the programme are to:

• raise the standard of safety awareness in the construction industry

• ensure that site personnel after completing the one day awareness programme can make a positive contribution to the prevention of accidents and ill health while working on the site

• maintain a register of personnel who have received training

• provide participants with a FAS Safe Pass registration card, indicating that the holder has attended a formal course in health and safety awareness

Under the Safety Health and Welfare at Work (Construction) Regulations 2006 Safe Pass / Safety Awareness Programmes applies to -

(a) craft and general construction workers,

(b) persons undertaking on-site security work, and

(c) persons or classes of persons as may be prescribed by the Minister.

For more information on Irish Site Safety please visit the website of the Health & Safety Authority www.hsa.ie while for more information relating to Irish Construction Insurance please visit the website of Keystone Insurance www.keystone.ie, Ireland’s premier supplier of Construction Insurance