Construction

Target Value Design – Target Value Design (TVD) is a tool that is integral to the implementation of Integrated Project Delivery. It is a collaboration process in which key design and construction participants develop an understanding of an owner’s program and purpose. Its use ensures that the facility meets the owner’s operational needs, is delivered on budget, and increases value and decreases waste through innovation. Read More…

Update to Ohio Construction Reform – The DBL Construction group has reported on the pioneering Ohio Construction Reform Act (OCR) since its enactment in 2011 and throughout its implementation during 2012. In short, OCR transformed Ohio’s outdated approach to public construction,  which previously permitted only multiple prime contracting, by allowing several alternative delivery methods. Read More…

Employment & Labor

Appeals Court Strikes Down Union Poster Rule – On Tuesday, May 7, 2013, the U.S. Court of Appeals for the District of Columbia vacated a new NLRB rule requiring businesses to put up posters informing employees of their right to form a union. Read More…

Employers Take Notice:  New I-9 Form Required Beginning May 7 – All employers are now required to use a new I-9 form. Effective May 7, 2013, the new form replaces all prior forms and must be used for newly hired employees. Read More…

NLRB Issues Two New Social Media Decisions – Earlier this month, the National Labor Relations Board (“NLRB”) continued its heavy activity in cases involving social media by issuing two new decisions in this area.  These decisions are the latest in a long line of NLRB actions indicating that social media remains an area of priority for the Board. Read More…

The Ohio State Architect’s Office, and its successor, the Ohio Facilities Construction Commission (OFCC), have been releasing contract documents for the alternative delivery methods periodically over the past year.  By now, the OFCC has released comprehensive sets of documents for the single prime contracting, CMR, and design-build methods.  These sets include general conditions, approved subcontracts, bid forms and instructions, bond forms, and supplementary conditions for Ohio’s universities and schools, among other helpful documents.  They are available for download on the OFCC website.

On several occasions in 2012, Ohio offered a day-long seminar, the Ohio Construction Reform Academy.  The OCR Academy aimed to educate attendees on how the state will implement the new delivery methods and how to use those methods successfully on their next Ohio project.  The Academy covered a wide range of practical topics.  These include the “Best Value” selection process, the subcontractor prequalification process, the Ohio CMR and design-build contracts, and a general review of the new OCR rules.

Unfortunately, Ohio is not currently offering the OCR Academy in 2013.  However, the state posted the PowerPoint presentations from the seminar on the OCR website.  While you lose the benefits of a live seminar, you may review these materials at your own pace and in the comfort of your office or home.

If you would like to know more about these issues, please contact Ryan McLane, a Northern Kentucky associate in the Medical Malpractice, Construction, Administrative Law, and Civil Litigation Practice Groups at Dressman Benzinger LaVelle psc.  Ryan can be reached at (859) 426-2143 or via email at rmclane@dbllaw.com

In the first case, New York Party Shuttle LLC and Fred Pflantzer, the Board found that Fred Pflantzer, a tour bus driver, engaged in activity protected by the National Labor Relations Act (“NLRA”) when he complained on Facebook about his employer.  Pflantzer took to the social media site to air his feelings on his employer’s lack of health care benefits, minimal sick and vacation days, unsafe tour buses, and payroll practices.  Pflantzer also applauded a competitor tour operator for whom he once worked, calling the competitor a “worker’s paradise” compared to his current employer.  Pflantzer also applauded the work of a labor union in creating a positive workplace at the competitor and informed Facebook users of the benefits of having a labor union.

The employer subsequently terminated Pflantzer and admitted that this post was a motivating factor in its decision.  The employer defended its actions by arguing that Pflantzer’s post was libelous.  The Board disagreed, however, and found that Pflantzer’s posts constituted protected activity under Section 7 of the NLRA.  The Board came to this conclusion despite the fact that there was no evidence that any other employees had access to Pflantzer’s private Facebook page.

In the second case, SEIU Healthcare Pennslyvania, an administrative law judge for the NLRB found that the University of Pittsburgh Medical Center had an overly broad social media policy, and ruled that parts of it had to be removed.  The policy prohibited employees from:

• soliciting employees “to support any group or organization”
• using email “in a way that may be disruptive, offensive to others, or harmful to morale”

The policy also limited employee use of email and social media to “authorized activities.”  The judge found that these provisions were too ambiguous and could potentially chill employees from engaging in protected, concerted activities.

These decisions indicate yet again that the NLRB has taken the offensive when it comes to social media.  Employers should make this area a priority and review their social media policies to ensure they are not overbroad.  Employers also should obtain sound legal advice when disciplining or terminating an employee based on his or her online activities.

Katie Cassidy Tranter is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

The new form is available on the USCIS website at http://www.uscis.gov/files/form/i-9.pdf.  Discard your blank copies of the old form, as it can no longer be used for any purpose.  You can verify that you have the new version of the form by looking at the  bottom left-hand corner of the document, which is stamped “Form I-9  03/08/13  N.”

Periodically check your files to ensure that you have a valid I-9 Form on file for every employee.  Under federal law, employers are required to complete and maintain an I-9 Form for all newly hired employees, and to make those forms available for inspection during business hours to the U.S. Immigration and Customs Enforcement Bureau.  Employers also must retain the I-9 Forms of former employees for a period of at least three years from the date of hire, or for one year after the employment relationship terminates, whichever is longer.

Nicholas Birkenhauer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

Bob Hoffer is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.

TVD stands in stark contrast to traditional project delivery in which the designer develops plans and specifications in isolation. With TVD key design and construction players are assembled early. Their first task is to determine whether the facility can be built within the proposed budget. The team’s conclusions are documented in a validation study, which consists of a design analysis and a detailed cost estimate.

Once the project’s viability is established, the team develops a strategy for its implementation. The players establish initial target costs for major components. Ways of adding value are identified. Cross-disciplinary teams are also created to coordinate effort and monitor cost. Once the design is complete, key participants finalize the target cost and the scope of work that must be achieved to attain that cost.

Innovation and waste reduction are the lodestars which guide this process. These are achieved through intensive collaboration and coordinate expertise.

Joseph Cleves is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

This type of letter can be from one of two types of authors – a patent owner who actively utilizes its patent for the commercialization of a product, or a company that acquires patents solely for the purpose of suing other companies rather than utilizing the patents in the market. The latter are commonly known as “patent trolls.”

“Patent troll” is a controversial term with numerous definitions that has gained popularity within the last decade as these companies have made their presence more and more prominent in the marketplace. For simplicity purposes, I will use the term throughout this article.

Patent trolls make money from collecting these “license fees” in response to a demand letter, as a result of settlement negotiations, or pursuant to a jury verdict, not from selling any product or technology embodied in the patent that they own. Many companies pay the demanded license fees without questioning the validity of the underlying allegations in order to avoid the costs associated with a lawsuit.

Often times the allegations are centered around operations or processes that are common in any workplace. Another common approach is for patent trolls to focus on a particular industry within a particular geographic area. It is not uncommon for several similarly-sized competitors to receive the same demand letter at the same time. For example, several of our clients have recently received a demand letter related to scanning devices used in connection with computers and e-mail – a practice common in many workplaces.

If you receive a letter claiming you are infringing someone’s patent, contact your attorney. There are several potential lines of defense against a “patent troll” that some brief research by an attorney can uncover. Knowing whether the owner has previously filed suit against an infringer, deciphering the record owner of the patent, determining whether or not you are actually operating in a manner that would constitute infringement, requesting specific information related to the alleged infringement, and evaluating the validity of the claims of the patent can help determine what the appropriate response, if any, should be.

Receiving a letter threatening to file a lawsuit against you is always upsetting. But contacting your attorney and doing a little research may save you from hours of stress related to a lawsuit and thousands of dollars in license and attorney’s fees.

Katie Koch is a Cincinnati attorney practicing at Dressman Benzinger LaVelle psc.

In the legal sense, a “contract” is an agreement whereby one party promises to pay money or perform services in exchange for another party’s promise to do the same. It creates rights between these parties that are enforceable under the law. Contracts are formed by an “offer” and an “acceptance.” Therefore, whether acceptance of a bid creates a contract largely depends on whether that bid legally constitutes an “offer.”

An offer capable of forming the basis of a contract must specifically state its essential terms. Those terms include the identity of the parties, the subject matter of the contract, and the consideration (which is the price and services to be exchanged). For example, if a subcontractor’s bid sets forth those terms, then the contractor’s acceptance of that bid will typically create a binding contract between them.

Despite this general rule, one should pay close attention to the language of the bid documents. For example, the bid documents may state that both acceptance of the bid and execution of a formal written agreement are conditions to the formation of a contract. A court will likely uphold such a requirement.

Finally, a contract arising from the acceptance of a bid does not eliminate the benefits of a formal written contract. A detailed, written agreement provides the parties the opportunity to fine tune the details of their respective obligations. The careful contractor will see that the parties’ obligations are set forth in more detail through a formal written agreement.

Ryan McLane is a Northern Kentucky attorney practicing at Dressman Benzinger LaVelle psc.