Posts Tagged ‘Washington’

Lien Bill Introduced in Washington Legislature To Offset Williams v Athletic Field

On January 25, 2011 Author By Scott Wolfe Jr        

Williams v. Athletic’s Field took the Washington mechanic lien world by storm last year, when it declared a mechanic lien invalid even though the claimant used the specific form provided by the statute. We’ve written about this opinion at length on this blog, and noted that the decision is now being reviewed by the Washington Supreme Court.

Today, Representative Moeller introduced a bill “addressing the notice requirements for claiming a mechanics’ or materialmen’s lien,” leapfrogging the Washington Supreme Court to legislatively address the impact of Athletic’s Field. House Bill 1475 can be viewed here. It’s schedule for public hearing in the House Committee on Labor & Workforce Development on January 28th.

Read the original text of the bill here.

The proposed changes are quite simple. When setting forth the statutory form for acknowledgment, the proposed bill would separately provide acknowledgment language for individuals and corporations.

The acknowledgment language that currently exists in the law should be used for “An acknowledgment for an individual claimant, an attorney of an individual claimant, or the administrator, representative, or agent of the trustees of an employee benefit plan…”

For a corporate claimant, the following acknowledgment language is provided in the bill:

_________, being sworn, says: I am the present (or vice president, secretary, treasurer, or other authorized officer or agent, as the case may be) of _________ that executed the claim of a lien, and I acknowledge this claim to be the free and voluntary act and deed of the corporation, for the uses and purposes therein mentioned; I am authorized to execute this claim and the seal affixed is the corporate seal of the corporation; I have read or heard the forgoing claim, read and know the contents thereof, and believe the same to be true and correct and that the claim of lien is not frivolous and is made with reasonable cause, and is not clearly excessive under penalty of perjury.

The law also provides that a party or entity that is not specifically identified in the statute with associated acknowledgment language “shall modify the pattern form to comply with the acknowledgment requirements pursuant to chapter 64.08 RCW”

If passed, the act would take effect on January 1, 2012. We’ll monitor and update you on the status of this act.

Posted in:     Mechanics Lien, Washington  /  Tags: , , , ,   /   Leave a comment

One License Enough for Joint Ventures in Washington and Oregon

On December 3, 2010 Author By Scott Wolfe Jr        

A few months ago, I posted “Joint Ventures and Contractor Licensing – Not A Simple Topic,” which compared the regulation of joint ventures by construction licensing entities in Washington (one party to joint venture requires license) and Louisiana (all parties to joint venture require license).

I completely overlooked a recent change in the Oregon law related to licensing joint ventures.   A change in ORS §701.021 puts Oregon in Washington’s camp insofar as joint ventures are concerned.  Like in Washington, so long as a single member of the joint venture is licensed, the JV entity will be considered licensed.

The change took effect on July 1, 2010.  Read the full text of ORS §701.021 here. Read a great article discussing details of the changed statute from Steward Sokol & Gray LLC here.

Posted in:     Licensing, Oregon  /  Tags: , , ,   /   Leave a comment

Washington Court of Appeals Confirms It’s Tough To Argue Around the Model Disclosure Statement Requirements

On November 15, 2010 Author By Scott Wolfe Jr        

In previous posts, I’ve written about the requirement for contractors contracting with property owners to provide a Model Disclosure Statement (Requirement in RCW 18.27.114(1)).

A case decided Division III of the Court of Appeals last year addresses a challenge to this act made by a contractor, and highlights just how difficult it is for folks to argue that the Model Disclosure Statement is not required on a qualifying project.

In this case, AWR Construction v. Labor & Industries, a contractor contracted to replace the roof of an apartment building. The owner of the apartment building – while not acting as a contractor on the project – was actually a registered contractor.

The Model Disclosure Statement must be provided whenever a contractor contracts with an owner. It is not required when a contractor is contracting with other contractors, suppliers, or the like.

AWR Construction’s argument here was that the property owner was a registered contractor, and thus, the disclosure requirement did not apply.

While this at first may sound like a clear position, there’s actually a decent justification behind the argument. The Model Disclosure Statement is required for the public’s interest, to disclose certain things to the public that is not known by them…but is known by contractors (i.e. that a lien can be filed against a project by subs, even after payment to the prime).

So, if the purpose of the statute is to disclose this type of information to the public, then why require this disclosure to a registered contractor?

Ordinarily, the disclosure need not be delivered to other contractors. The Court of Appeals found this was not the case, however, when the registered contractor was acting in the role of an owner, and not a contractor – as was the case here.

The disclosure requirement has nothing to do with the parties’ actual registration (or lack thereof), but everything to do with the role of the contractor’s customer. If the client is the owner of the property, the disclosure must be sent.

Therefore:   Send Model Disclosure Statement…or Else!

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Posted in:     Filing Requirements, Washington  /  Tags: , , ,   /   Leave a comment

Comment Period for Seattle’s New Construction Standards Expiring Soon

On November 2, 2010 Author By Scott Wolfe Jr        

The City of Seattle has stuck with the same Construction Standards since 2008 (you can download the current standards in PDF here), and they are poised to publish a new edition in the early part of 2011.   What will these new standards look like?   That, for the time being, has not yet been completely determined.

You can take a look at the draft specifications on the city’s website.   The specifications are in a comment period until November 19, 2010, when it will close.  If you have a comment you can use the Comment Form on their website, or send an email to City_Standards_Engineer@Seattle.gov.

How is the proposed 2011 standards different from the current version?

The Ahlers & Cressman Construction Law Blog summarizes the changes as “following the trend of many public works owners…in transferring more risk to the contractor and away from the public works owner.”    Make your comments while there is still time, and we’ll see how it turns out.

Posted in:     Regulations, State & Federal Contracting  /  Tags: , , ,   /   Leave a comment

Is The Nailed! Blog “Nailing” Companies Before A Fair Investigation?

On November 1, 2010 Author By Scott Wolfe Jr        

A couple of weeks ago, we posted about a new blog out in the blogosphere that is of interest to the Washington construction industry:   Nailed!

The blog is published by Washington’s Department of Labor and Industries, through Carl Hammersburg, the department’s Fraud Prevention and Compliance manager.  The blog focuses on fraud prevention and compliance with L&I regulations.

It’s not shy about it’s goal.   The blog is called “Nailed,” and it’s sending a message to its regulated industries that it will be nailing those not in compliance.

While I generally like the blog and its content (and sometimes share it on my Twitter account), I was a bit upset by an October 25th post:   Tragedy reveals hidden cost of independent contractor label.

The post discusses a very hot topic:  the distinction between independent contractors and employees.   I’ll be the first to tell you that the independent contractor label is often abused, with companies – big and small – holding benefits from its employees by labeling them an “independent contractors.”    Just because you call someone an independent contractor, doesn’t make it so.

The blog post uses a recent tragedy to “reveal the hidden cost” of improperly using the independent contractor label.

According to the post, a Burien two truck driver lost his life in an accident, and his family contacted L&I requesting death benefits.   According to L&I:

That’s when we discovered his employer had not paid for the insurance that would entitle his family to death benefits.

The owner of the tow truck company claims the victim was an independent contractor, not an employee. Even though the man was insured by the company and drove company-owned trucks, the owner insists the man killed met the guidelines to qualify him as an independent contractor.

So, what will come next in the story?   Sounds to me like L&I is going to explain how they investigated the incident and discovered that the tow truck company violated regulations and misclassified the deceased man as an independent contractor.

But no, the post goes on to say this:   “We’re opening a review of this incident…to determine if these claims hold water…”

Wait!   They didn’t already investigate this?   From the setup of this blog post – after all, look at its title – it seems like the department had already made up its mind about this.   They haven’t even investigated the incident yet!?

To highlight that apparent bias that L&I will have entering the investigation, I commented on the blog post with the following:

Hi Carl – Let me start by saying I’m a big fan of the Nailed Blog, and the concept behind it. I am a reader and subscriber, and frequently refer to it on our blog: http://www.constructionlawmonitor.com.

As an attorney who represents clients in the construction industry, we confront this “independent contractor v. employee” issue a lot. There is certainly a problem with the label being used incorrectly. I find that folks don’t use it incorrectly on purpose…they just don’t understand the distinction. After all, the distinction can get quite technical.

All that aside, I’m commenting because I didn’t like this post. Let me explain.

In reading the first three paragraphs, I assumed that L&I had already opened an investigation and closed it: finding the towing company was in violation. But then I encountered the fourth paragraph: “We’re opening a review of this incident…”

Wow! If this were any other blog, I wouldn’t be caught off-guard by the commentary. But since Labor & Industries will be the government agency investigating this incident and the towing company’s conduct, I was surprised that the agency would be starting the investigation with such bias.

This is unfortunate. There are circumstances where the independent contractor label would be appropriate, and maybe this is one of those circumstances and maybe its not. But I think Nailed! went a little too far with this post, as it seems like L&I made up its mind upon hearing the sad story…and not the facts.

It’s unfortunate, but sometimes it seems like government agencies have an agenda of their own, and they plow through honest legal questions and determinations to advance their agenda.

I sympathize a great deal for the Burien man who lost his life, and for his family.    And if the tow truck company was improperly classifying employees to save money, they should be nailed.

But we don’t know that yet.   It’s too bad that the department with the first crack at making that determination seems to already have made up its mind.

Articles About Classifying Employees / Contractors:
Posted in:     Labor Law, Regulations  /  Tags: , , , , ,   /   2 Comments
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