In September Boston television station WCVB / Channel 5 interviewed Bob Hurwitz regarding his experience serving as an Arbitrator under the Massachusetts Home Improvement Contractor Act. The interview was televised on WCVB’s evening newscasts.
In addition to representing building supply companies and commercial contractors, Bob has served as an arbitrator on residential cases involving homeowners and contractors under the Act. The Home Improvement Contractor law was created in 1992 to protect consumers and regulate the business practices of contractors. It established a registration requirement for contractors, a complaint and enforcement program, an arbitration program for resolving disputes, and a Guaranty Fund program to compensate consumers up to $10,000 for unpaid judgments against contractors.
Hurwitz, Richard & Sencabaugh LLP is pleased to announce that Bob Hurwitz and Gene Richard have been named Massachusetts and New England Super Lawyers for the fifteenth consecutive year, and that Dan Sencabaugh has been named a Massachusetts and New England Rising Star for the third time. Bob Hurwitz and Dan Sencabaugh received their honor in the field of construction law while Gene Richard received his recognition in the field of administrative law for his work as a liquor licensing attorney. The Super Lawyers and Rising Stars lists appear in Boston Magazine as well as the publication New England Super Lawyers. The Super Lawyers list recognizes the top five percent of attorneys in New England while the Rising Stars list recognizes the top 2.5 percent of attorneys 40 years old and under or in practice for 10 years or less.
A construction worker was killed last month while operating an excavator on the site of the future Encore Boston Harbor (formerly known as the Wynn Boston Harbor) resort and casino in Everett, MA. The worker was an employee of a subcontractor working on the project under the general contractor, Suffolk Construction. Investigations by local and Massachusetts State Police and the federal Occupational Safety and Health Administration (OSHA) are under way to determine the cause of this fatality.
The U.S. Court of Appeals for the District of Columbia in 2011 decided Summit Contractors, affirming the potential for general contractors to be held liable under OSHA standards for hazardous exposures to the employees of a subcontractor. Under OSHA’s multi-employer citation policy (MECP), more than one employer, including both a contractor and a subcontractor, may be held liable for a workplace hazard if:
- The employer is creating, exposing, correcting, or controlling in relation to a hazard, and
- The employer’s actions were insufficient to meet its obligations with respect to OSHA requirements.
What does this mean in practice? An employer is:
- Creating if it caused the hazardous conditions that violated an OSHA standard.
- Exposing if its employees are exposed to the hazard.
- Correcting if it is on the same worksite as the exposing employer and is given the responsibility of installing or maintaining health/safety equipment or devices.
- Controlling if it has supervisory authority over the worksite, including the power to correct safety and health violations either through control established by contract or in practice.
Steps an employer-contractor can take to protect your company include:
- Conduct regular inspections of the work site.
- Hire sub-contractors with excellent safety histories.
- Require all sub-contractors to observe safety rules and OSHA standards.
- Inform all sub-contractors of conditions that could violate OSHA and require correction of these conditions.
If you have further questions about employer or contractor liability under OSHA, please do not hesitate to contact our office.
This post is for informational purposes only and is not offered, nor should it be construed, as legal advice. Statutes, regulations and case law may revise and amend applicable law. This overview should not be solely relied upon, without also consulting the then current state of the law as applicable to the particular facts and circumstances of each case.
NEW MASSACHUSETTS RETAINAGE LAW (M.G.L. c. 149, §29F)
TO GOVERN PRIVATE CONSTRUCTION PROJECTS
EFFECTIVE – NOVEMBER 6, 2014
Q. What private construction projects does the new Massachusetts Retainage Law affect?
A. The law applies to all private construction projects in which the prime contract exceeds
$3 million (except those involving 1-4 unit residential projects).
Q. What are the main elements of the new Massachusetts Retainage Law?
A. The main elements include:
- Limits retainage on periodic payments to no more than 5%
- Requires Prime Contractor to submit notice of substantial completion to Owner within 14 days of substantial completion
- Owner to accept or reject notice of substantial completion within 14 days of receipt of notice
- Defines substantial completion as date the work is sufficiently complete so that Owner may occupy or utilize project for its intended use.
- Requires party withholding retainage to first provide written notice describing incomplete or defective work and deliverables
- Requires Owner to furnish Prime Contractor with written punch list, including deliverables, within 14 days after acceptance of notice of substantial completion
- Requires Prime Contractor to furnish subcontractors with written punch list, including deliverables, within 21 days after Owner’s acceptance of notice of substantial completion
- Requires good faith certifications to be made
- Allows for electronic communications
- Any contract provision that “purports to waive, limit or subvert” the Retainage Law or “redefine or expand the conditions for achievement of substantial completion for payment of retainage” will be void and unenforceable
Partners of the firm Robert W. Hurwitz and Eugene R. Richard have both been named Massachusetts and New England Super Lawyers for the tenth consecutive year. Bob was named in the field of construction law, and Gene handles a range of business and legal issues, including contract negotiation and enforcement, administrative and regulatory law, and corporate law.
The Super Lawyers list appears in Boston Magazine as well as the publication New England Super Lawyers, and recognizes the top five percent of attorneys in New England.