18 minute read
labor relations
Awhole new set of laws have been implemented at the federal and state level during the COVID-19 pandemic. Employers need to understand these laws to manage their employees and avoid legal liability. This article will detail some key issues that every employer needs to recognize.
Unemployment Compensation
Historically, to be eligible for unemployment compensation benefits, a claimant was required to certify that he was ready, willing, and able to work, and that work was unavailable. Now, under the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), a claimant can receive unemployment compensation benefits if he is unable to work because he is ill with coronavirus, caring for a household member with coronavirus, or quarantined by a physician. In addition, the CARES Act provides claimants with an additional $600 per week through July 31, 2020 and extends benefits for an additional 13 weeks for a total of 39 weeks of benefits in most states.
Many contractors wonder whether a laid-off or furloughed employee who refused to return to work will continue to be deemed eligible for unemployment compensation benefits. The answer is no. When an employer recalls an employee to work following a layoff or furlough, the employer should do so in writing to confirm that work is available and that everything possible is being done to ensure a safe working environment. If the employee refuses to return to work after receiving this notice, in most cases it is appropriate to deem the employee to have voluntarily resigned his employment. In these circumstances, the Department of Labor should determine that the employee voluntarily quit and is ineligible for benefits.
Paid Sick and Paid Family Leave
Effective April 1, 2020, employees working for employers with fewer than 500 employees are eligible for paid sick leave and paid family leave under the Families First Coronavirus Response Act (FFCRA). Employees are eligible for up to 80 hours of paid sick leave (up to $511 per day) when they are sick with the coronavirus or have been quarantined. Sick leave is also available for employees caring for a household member with coronavirus (capped at $200 per day). Thus, when an employee is sick, taking care of a sick family member, or quarantined, the employee is eligible for FFCRA sick leave or, as noted above, can file a claim for unemployment compensation benefits. That being said, em- ployers should not lay off or furlough employees because they have requested time off that would qualify under the FFCRA.
In addition, the FFCRA provides up to 12 weeks of paid family leave (at $200 per day) when an employee is required to stay home to care for a child whose school or daycare is closed because of the coronavirus. To provide some relief on this issue, the DOL has issued guidance on the rules for providing leave when the employee is not the primary child caretaker and when the child is 14 or older.
Taking Temperature and Other Inquiries
The Equal Employment Opportunity Commission issued guidelines saying that, in most cases, it is legal to take an employee’s temperature when he reports for work. Although thermometers are not always calibrated perfectly, most employers use 100.4 degrees as a hard cutoff. Instead of scanning employees for their temperature, a growing number of employers are having their employees fill out a questionnaire every morning when reporting for work. The questionnaires vary, but most seek information about the employees’ temperature, confirmation that the employees are not experiencing flu-like symptoms, and that no one in their household has been experiencing flu-like symptoms or tested positive for coronavirus.
Whether your company is taking temperatures or asking employees to complete a questionnaire, one trap to avoid is failing to pay employees for all their compensable hours. Although the Department of Labor has not implemented specific regulations on this issue, based upon already existing regulations and legal precedent, the safe bet for any employer is to count any time spent by hourly, non-exempt employees standing in lines, completing surveys, or having their temperatures taken as compensable hours worked even if done before the start of the workday.
Telework
Many employers have permitted their office employees to work from home during the pandemic, especially while statewide stayat-home orders remain in place. But what should an employer do when things begin to normalize and their business reopens? What if an employee who is not sick and is not requesting a leave of absence covered by the FFCRA asks to continue working from home because he is concerned? In some states, including New Jersey, executive orders ordering businesses to close their facili
ties specifically encourage employers to allow their employees to work from home to the extent possible. But these laws are suggestive only. Unless the governor or state legislature goes farther, employers are not required to make telework available acrossthe-board on an indefinite basis. Again, in this situation, creating specific documentation is critically important. If an employee refuses to return to the office and insists on working from home, the situation should be memorialized in writing delivered to the employee, and the employer may consider the employee to have voluntarily resigned if they refused available work.
This situation becomes trickier if the employee is not merely afraid to come to work but indicates that he cannot report to work because of a medical condition or because of a family member’s condition. In these situations, there may be a legal obligation under the Americans with Disabilities Act to provide reasonable accommodations, including a teleworking option.
Layoffs and Furloughs
Employers use the terms “temporary layoff ” and “furlough” interchangeably, although the latter typically refers to a situation where the employee continues to receive health insurance benefits. When implementing layoffs, employers need to be mindful of potential discrimination issues. When selectively laying off employees, employers should be prepared to establish legitimate business reasons for their decision-making, such as seniority or prior written performance evaluations. By far, the most common
type of claim relating to layoffs is age discrimination. Perhaps that is because employers often try to layoff the highest-paid employees in any given category, and the highest-paid employees tend to be older workers.
Of course, for businesses that received Paycheck Protection Program (PPP) loans, layoffs and furloughs may have a negative impact when calculating loan forgiveness. However, the PPP rules generally look at the business’s overall headcount, and so terminating one individual and replacing them with another usually does not impact PPP forgiveness.
Conclusion
In addition to weathering the economic uncertainty and safety issues posed by the COVID-19 pandemic, employers must plan ahead to ensure compliance with all new rules and regulations governing the workplace. There will likely be an exponential increase in employment-related claims being filed in federal and state courts during the second half of 2020, and you can avoid being part of these proceedings by being proactive.
Jonathan Landesman is a partner at Cohen Seglias Pallas Greenhall & Furman. He is co-chair of the firm’s Labor and Employment Group, representing hundreds of contractors and subcontractors with respect to the workplace and union issues. He is available at jlandesman@cohenseglias.com and 609.668.3183.
West Bay Construction, Inc. Completes 25 Years in Construction
By: zoe baldwin
After completing a quarter-century in business building everything from playgrounds to storm drains and watermains, West Bay Construction Inc. of Absecon, NJ has established a stellar reputation as a small but mighty firm capable of any challenge. We spoke with Frank and Linda Corradetti about their recent milestone, reflecting on the past 25 years of accomplishment for a firm that started with a, “Why not?”
“I started off working for a contractor in Washington DC and then I came back to NJ and began working for Ole Hansen & Son, a general contractor,” Frank tells me. “I thought I was going to be set for life there. Ole Hansen was a local bridge builder – a well-established company in its third generation – and I figured I’d be there for another 20 years but the owners decided to go in a different direction and close the heavy construction business. I was in my thirties and I had a young family, so I bounced around a little bit until opportunity approached me.”
Frank had a partner when he first started, but he stepped back relatively early, leaving Frank with a big decision on his hands. “So, I talked it over with Linda – you need to have the support of your family! We knew it was either now or never and jointly decided it was worth the risk. And when you’re young, what do you have to lose? In your early thirties, worst case scenario I’d have to go back to working for somebody else. And that’s the Ameri
The West Bay Team (L-R): Frank Corradetti, Linda Corradetti, Justin Ramogasse, Kevin Blevin, and Bob Jones (Elsamarie Corradetti working remotely due to the Coronavirus Response).” West Bay installed a meandering porous walkway along the park banks of Lake Lily in Cape May Point
can Dream, right? Be your own boss, open your own company… they just leave out how hard the work is!”
And work hard they did. The young firm began its legacy tackling storm drain, watermain, and sewer work, completing twelve projects during its first year in business. As Frank says, “It takes a lot in the beginning. We started out of our garage, where you work all day, you go in to eat dinner, then you go back out to the garage and work all night.”
“When it first started, we had three kids and the youngest was only three,” Linda says. “I was a stay at home mom at the time and involved really in an ancillary way, helping here and there.” But business picked up quickly and Linda joined the firm fulltime. “I could do it from home which was great, and then we moved to a little office right down the street from where we lived so it was relatively easy to balance the work and home life.”
“I don’t know anybody who succeeds in this business without putting in the time,” Frank adds. “It’s a lot of stress and it’s a lot of effort, but it’s really satisfying and we’re just fortunate enough to still be here doing the same thing 25 years later.”
Frank and Linda are both engineers by training and graduates from Rutgers University, Frank with a degree in civil engineering and Linda with a degree in material science. Linda credits that background as a key ingredient to West Bay’s success. “I think you have to be able to think outside the box,” she tells me. “Our youngest daughter is an engineer as well, and she and Frank are very much outside-of-the-box thinkers. Having an analytical mind is half the battle.”
The newly minted firm took its name from its first location in Somers Point, which is on the west side of the bay separating the barrier islands from the mainland. They also adopted a light
house logo as homage to the shore communities in which they perform much of their work. “It’s a little different out here. We do a lot of work on the barrier islands and along the shore in Ocean, Cape May, and Atlantic Counties, so we’re used to working in wet and sandy soil conditions, and that’s a nice advantage.”
After several years establishing their presence in the utility construction community, West Bay branched into military con
West Bay installed concrete foundations for three new compressors in the background and the new fueling canopy at the NJ Transit Howell Bus Maintenance Garage. tracts. “We were doing a lot of work at the Coast Guard Base in Cape May County where their training center and boot camp are. We’ve also done a good amount of work with the Naval Facilities Engineering Command (NAVFAC) out at Lakehurst which is now part of the Joint Base MDL. Once you start doing the military work, you learn how to expand into the different bases.” Frank explains.
One of the first projects included the construction of pump station foundations in Wildwood for the Coast Guard (USCG). Later, the company successfully completed a bulkhead repair where they drove steel sheet piles for the USCG Station Indian River in Delaware. West Bay would go on to complete a wide array of projects for USCG, including demolition, concrete work, fence installation, and a gymnasium rehabilitation, among others.
To support Department of Defense efforts at the Joint Base, the firm has also completed playgrounds, constructed parking lots, performed pavement rehabilitation, installed airplane tie-down anchors and grounding rods as well as a brick paver walkway with a custom made US Air Force emblem, milled and paved taxiways, and constructed fuel containment structures to contain spilled fuel from escaping into the environment.
West Bay has also performed design-build projects for the military including two playgrounds, an animal control fence system, and a complex rehabilitation of an inert warehouse which was used to store non-explosive equipment at Naval Weapons Station Earle. Military work kept West Bay busy for a number of years into the late 2000s. "And that's the American As Frank explains, “Things were going Dream, right? Be your own well for a while but boss, open your own it started getting very competitive. company...they just leave The military budgets began getting tighter which baout how hard the work is!" - Frank Corradetti sically affected the way the military allotted the work. We decided to change direction and went back to our bread and butter which is utility work.”
West Bay pivoted back and began building their capabilities in pipework. “We just finished a challenging project in Brigantine which was storm sewer installation and road reconstruction. We also just completed a project with AE Stone, Inc. for Delaware River Port Authority at the Woodcrest Speedline Station. The AE Stone scope of work included the reconstruction and repaving of the parking lots and upgrades to the station utilities. West Bay was brought in to perform the sanitary sewer improvements which included gravity sewer, force main, and pump station construction.”
In addition to their expertise in utility construction West Bay has carved a niche for themselves in the field of recreation, producing everything from design-build playgrounds to bocce ball and tennis courts. In fact, they just finished up a small project for the city of Cape May Point in which they built a special porous asphalt walkway along the lake in a park.
“We initially got qualified to do school work, and it seemed schools always had money for recreational improvements. We would go after site projects and there was always a playground or park equipment with it, so we got our people certified to become playground installers,” Frank explains. “You have to be certified, so not just anybody can come in and do it. The work is a little different and we like that.”
Tackling a diverse array of projects allows West Bay to keep it local, which they prefer. “When we were a young company, we were really looking to grow our capabilities. We were fortunate in that we didn’t really have to travel too far. We travelled when we had to, but for the most part we tried to see what we could do in the area. At the time Atlantic City was going through a great growth period, so there was plenty of work locally. When things got a little tougher, we started doing the military work.”
Those military contracts brought the firm up to Lakehurst, which is about an hour away, “We generally try to stay in that radius,” Frank elaborates. “In addition to our work at the shore, we’ve done a fair amount in Gloucester, Camden, Burlington, and Sa
- and I like it that way! If it’s within our capabilities I’m not afraid Inc. that connect to a dredge disposal area just outside Atlantic them on Ben Franklin Bridge repairs upgrading the cathodic protection system.
Most of the projects the firm builds are from public owners, but looking to the future, Frank sees growth potential in the investor-owned market. “We were recently prequalified with NJ American Water, which is exciting. We had previously done work for them as a subcontractor through Henkels and McCoy, Inc. and now we’re actually starting to break into that market.” “We’ve also been looking forward for the gas tax to kick in so there will be more bridge rehabilitation projects.
Frank also sees a future in design-build options, “I’m a licensed
Sea Isle City met the needs of the growing popularity of Bocce by adding a fast draining state of the art court. I think one of the benefits of a design-build is that you get the experience of a contractor in the design phase. Whatever you lem Counties - just last year we did a nice inlet job with R.E. design, you have to build, so you necessarily keep that in mind Pierson Construction, Co. for the City of Camden. For us, it’s during the process. At the same time, you need to have the ecoabout seeing what we can do in the area more so than trying to nomics of it down to keep it affordable for the owner. In that specialize in one thing and traveling all over the country with it.” way, you have the opportunity to use the contractors’ experience According to Frank, it’s this diversity of projects that keeps the work interesting. “We’re a small company, and I’ve worked with small companies and I’ve worked with big companies, but what during design to build an economical and functional project. I think it’s a viable option that should be used more often on public projects.” it comes down to is that I like the ability to pick interesting jobs It’s easy for Frank and Linda to see a bright future for the firm – something that’s a little different.” One since they have surrounded themselves such job was a project for NJ Transit workwith a dedicated, capable, and flexible team. ing with Nicosia Contracting International, LLC and Clean Energy Fuels Corporation. "Frank and I are kind of “Frank and I are kind of that old-time mom and pop organization, and everybody pitchThe project was improvements to a compressed natural gas fueling station at the NJ Transit Howell bus garage. West Bay that old-time mom and pop organization, and es in to do a lot of things,” Linda says. “Our whole operation is set up so that we’re all working together and aware of what we’re handled all the structural and civil work including pouring of compressor and canoeverybody pitches in to all working on. You can’t have a gap if somebody’s out – especially now with the coropy concrete foundations and underground utilities. “The bus garage was a challenging job. Construction was completed in stages keepdo a lot of things." - Linda Corradetti navirus – you must have a system in place where someone else can just pick up where you left off. We don’t have the luxury of redundancy like a bigger organization.” ing existing equipment operational while “We’ve been lucky to have a lot of good peomaintaining service and operations of the bus facility. Many ple working with us and I’ve got a supportive family,” Frank adds. of the projects we’re involved with are structure rehabilitations “Linda has been right here with me the whole 25 years, and we’ve where you’re constantly working around older structures. Every been fortunate to have talented field people we can rely on. A few project is different and being the size contractor we are, we can have been here for many years like Superintendent Kevin Blevin go after unique and different projects that interest us. We work and Foreman Bob Jones, and we’re grateful for key people like with a lot of different generals, and we also do work as a general that who’ve stayed with us.” to try it.” Frank says. Looking back on the past quarter-century of hard work and perRight now, West Bay has a few solid projects on its plate, includmore to look forward to. West Bay’s local focus, eye for detail, ing the one featured on our cover, which highlights a temporary and talent for challenge will serve them well as they take on the access road and bridge the firm is building for Joseph M. Sanzari, next chapter in their growing legacy. engineer, and West Bay has the capability to do design-build. severance, the Corradettis have much to be proud of and even City. They’re also working with IEW Construction Group, Inc. UTCA congratulates Frank, Linda, and the West Bay Construcon a Delaware River Port Authority job over at the Commodore tion Inc. family on this milestone and wishes them all the best in Barry Bridge doing deck repairs and will also be working with the years to come.
