a:\newslw.96 [4]Alan Lee MitchellStephen De'ak202000-04-03T17:56:00Z2006-07-01T22:26:00Z2006-07-01T22:26:00Z112006846 5716803011.8026 FURRER & SCOTT LLCConsider . . .VOL. 9, ISSUE 2 April, 2000Law OfficesFURRER & SCOTT LLC9185 SW BURNHAM ST. POST OFFICE BOX 23414TIGARD, OR 97223 TIGARD, OR 97281(503) 620-4540 -- (800) 334-8986 -- FAX: (503) 620-4315www.furrer-scott.comGUEST COLUMN: BEWARE THE BOLI BITE!Darien S. LoiselleSchwabe, Williamson & Wyatt PCContractors engaged in Public Works projects must comply with a host of prevailing wage requirements (“PWR”). The most common PWR violations relate to minimum wage rates, posting of prevailing wage rates, and overtime paymentsThe Bureau of Labor & Industries (“BOLI”) has several powerful enforcement options under PWR. First and foremost, BOLI can and usually does seek recovery of back wages. As part of the back-wage claim, BOLI also can pursue a claim for liquidated damages for the injured employee, which may be double the amount of the unpaid wage if the contractor willfully falsifies payroll records.In addition to these civil remedies, BOLI can pursue additional sanctions administratively such as civil penalties for wage loss violations and debarment of the contractor from all Public Works contracts for a period of up to three years. BOLI sets up its PWR enforcement practices in two stages: (1) the back-wage and liquidated damages component; and (2) the civil penalty and debarment component. Significantly, BOLI will not explain that it may pursue civil penalties and debarment even if the contractor pays the back wages.In other words, you can enter a settlement with BOLI that addresses what you believe to be the substance of the dispute, the back-wage and liquidated damages components, only to find out that BOLI later will file an administrative action for debarment and civil penalty sanctions. You may be even further surprised to learn that BOLI’s enforcement actions include the use by BOLI of the contractor’s admissions made during the settlement process of the back wages claims.BOLI does not tell contractors or their attorneys about this “BOLI bite.” The contractor may believe that everything is settled only to discover that the settlement did not prevent the administrative sanctions. The lesson for contractors is to contact competent legal counsel immediately upon discovering a BOLI investigation, no matter how small the matter may seem.CHANGES TO FEDERAL MILLER ACTIf you work on construction projects owned by the federal government, then you are – or should be – familiar with the Miller Act. This is the federal law that allows certain unpaid contractors or suppliers to make a claim against the prime contractor’s bond for the project.In late 1999, the US Congress adopted some revisions to the Miller Act. The first significant revision is that waivers of bond claim rights are void unless they are in writing, signed and executed after the potential claimant has begun work on the project. In other words, anticipatory bond right waivers are not enforceable if they are executed before the potential claimant begins work.The second significant revision is that the required notice of claim may now be sent via “any means which provides written, third-party verification of delivery.” For example, certified mail, return receipt requested would be acceptable. Previously, only registered mail was acceptable.Finally, remember that, while there are some similarities, the federal Miller Act is different than the Oregon Little Miller Act.DEMAND LETTERS BY CLIENTSDo you ever send someone a letter and include a “cc” to your attorney because you want the other person to know just how serious you are? If you don’t have your attorney’s prior permission, this could create problems.In addition, if you say you are sending a copy to your attorney, you should do so. Not only does this allow the attorney to know that a dispute may arise, but also establishes that you follow through on your statements.Recent court decisions under the Federal Fair Debt Collections Act have reinforced this firm’s position that our clients should check with us before using our firm’s name (or any of our attorneys’ names) as a “cc” in any letter. If you have questions about this issue, please call us.50 WAYS TO LEAVE YOUR COMPANY?If you are one of the principals in a construction company and you leave the company, could you later be held responsible for payment of a Construction Contractors Board final order against your former company? If you think the answer to this question is “no,” then you could be surprised.In a recent hearing, the CCB’s administrative law judge ruled that a principal in the above situation was not only responsible for payment of the CCB order against his former company, he also could not obtain a new registration with the CCB.At the time the principal left the company, a CCB claim had been filed against the company but had not yet gone to a hearing or been converted into a final order. The principal then obtained a CCB registration for his new company.Later, the CCB claim against the former company went to a hearing that resulted in a final order against that company. When the former company did not pay that final order, the CCB suspended the former principal’s new CCB registration. The CCB’s internal administrative appeal committee upheld this decision. In Re Egan, File No. 26744-SP-V, (January 26, 1999).One moral of all this is that, before you leave a construction company in which you are a principal, you should verify that there are no outstanding CCB claims or final orders.CCB “HIGH POINTS” Learn about and use the new Consumer Notification form; it is mandatory to give this form at the time of bidding residential work. The 1999 laws allow landscape contractors to perform certain construction work; if you are a landscape contractor, learn about these changes. If you change your form of business entity, your CCB registration must also change. For example, if you form a new LLC or corporation, this is a new registration. This can present issues if it occurs while a project is ongoing. If a claim is filed against your CCB registration, follow up quickly and consistently. If you are not familiar with the process, you should consider legal counsel. If you are involved in a CCB hearing, your own testimony as to the value of the work performed by your company may not be sufficient evidence of such value for the administrative law judge. If your contracts have arbitration clauses, learn about the CCB arbitration rules; they can greatly impact your rights.FIRM NEWS:DOUGLAS R. HOOKLAND spoke on Washington Construction Lien and Bond Claims at a March 8, 2000 seminar in Portland for NACM-Oregon, Inc.MICHAEL J. SCOTT and ALAN L. MITCHELL spoke on Oregon Construction Lien and Bond Claims at a March 29, 2000 seminar in Portland for NACM-Oregon, Inc.MICHAEL J. SCOTT, DOUGLAS R. HOOKLAND and ALAN L. MITCHELL spoke on Construction Lien and Bond Law in Oregon at an April 5, 2000 seminar in Portland for Lorman Education Services.DOUGLAS R. HOOKLAND will speak at an April 13, 2000 seminar in Portland for National Business Institute. Mr. Hookland will address the issues of defective bids, defective plans and specifications and ethical issues for construction law attorneys. ALAN L. MITCHELL assisted with preparing the materials.RANDOM THOUGHTS:“It ain’t no sin if you crack a few laws now and then, just so long as you don’t break any.” Mae West.This newsletter is published quarterly by the law firm of Furrer & Scott LLC for the benefit of its clients and friends and is intended to inform them about legal matters of interest. While this information is meant to be current, we do not promise or guarantee that the information is correct, complete or up-to-date. This information is not intended to and should not be considered to provide legal advice or create an attorney-client relationship. No action should be undertaken in reliance hereon without professional legal counsel.Alan L. Mitchell, Editor