Today, we have a guest post by on of my comrades in crime (that is, a fellow construction law blogger), Chris Hill. Here’s his official bio: Christopher G. Hill, LEED AP is Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals. His practice concentrates on mechanic’s liens, contract review and consulting, occupational safety issues (VOSH and OSHA), and risk management for construction professionals.
First of all, thanks again to Melissa for letting me post at her fine blog. She’s one of the more knowledgeable and cool Tarheels I know (and this is coming from a Blue Devil!). Now, on with the show.
As those who read my Construction Law Musings blog on a regular basis know, I am a huge proponent of getting a knowledgeable attorney involved in your construction contracting business early on. While we construction lawyers are generally seen as last resorts, we can actually be helpful and (dare I even say it?) save you money. How, you may ask, can paying a construction lawyer that ostensibly is only there when you have a claim actually save you money? Well, as you may have gathered by the title of this guest post, I’m going to tell you.
Two words: Disaster avoidance.
Litigation is a money, time and emotion draining process for those that don’t have the particular odd propensity of the litigator that makes them actually enjoy trials. Litigation takes money from the bottom line because no business this side of a cigarette or pharmaceutical company can do business planning to sue or be sued. For that reason, litigation cannot be treated as overhead and even in the case where you could get a judgment for any fees that you may spend, you are still out the cash and even then may never recover on the judgment. A contractor cannot make money through litigation (at least in my experience).
Even in the case where you are “right” and “should never lose” there is risk in court. Juries, arbitrators and judges sometimes go the other way. These are humans. They are fallible and in many ways unpredictable. Litigation is (and should be) a last resort.
The best way to avoid this result is a good contract and good advice from those of us who have seen the results of litigation on numerous occasions and that therefore know how to avoid it. Everything from the proper claim and notice procedures to a well scoped project are necessities up front. Aside from the “common sense” issues that you as a business person will see coming, an attorney can see the picky “traps” that are there and are counterintuitive. For instance, Virginia, unlike many other states, allows the waiver of mechanic’s lien rights in a contract. You wouldn’t want to miss this thinking that you “knew” that such a clause was unenforceable. [Editor's Note: By comparison, in NC, such a waiver in advance is against public policy].
Much like your bi-annual visits to the dentist (yes, I compared my profession to one that is almost as popular), the relatively small expense of early review of your contracts and business practices can go a long way toward avoiding surprises and disastrous expenses later. In short, and as you learned in kindergarten, doing it right the first time is always easier than fixing the problem later.
My final advice: Add a lawyer to your team of advisers, you’ll be glad you did.
Thanks, Chris, for another fine post. And I completely agree: the number of hours spent on claims will vastly supersede the small cost for most companies/Firms to properly prepare and vet their contracts and proposals. Chris and I welcome your comments, questions, and thoughts!
As I mentioned, I was one of three amigos who spoke on a Construction Contract webinar last week. We had a good turn out and lots of very astute questions during the Q&A portion. While you will miss all of my
witty insightful helpful commentary, you can check out the slides for my portion, on understanding and modifying key terms, here:
Today, we have a guest post by Hayley Spencer, a freelance writer and attorney, on behalf of Martindale.com. She enjoys writing articles on contract law, law careers, and employment agreements.
Got a Job Offer? Now What? Engineers and Architects: Think Before You Sign!
Architects & Engineers are not immune from employment agreements. Those who go to work for a larger companies, especially, may be required to sign a contract of employment. This form may be standard and identical for each employee, or each employee may have a contract with the employer that applies solely to him or her. Alternatively, there may simply be an oral contract about the type of work the employee will perform, benefits to be provided, and bonuses which are applicable. If there is no oral or written form of agreement, the behavior of the professional parties involved can be identified as an implied employment contract. Some relationships may be that of a traditional employer and employee, while others may be set up as some type of an independent contract. Regardless of the specific details, it is always wise to have a qualified attorney review all such agreements before you sign them.
Why Do Engineers and Architects Need Employment Agreements?
Barring terms and policies that are actually illegal, anything and everything can be integrated into these types of agreement. Nonetheless, for engineers and architects, the law provides several safeguards regarding what can and cannot be negotiated upon as terms of employment. Furthermore, due to the gradual decrease in unemployment rates, employers have had to propose contracts for transitory workers loaded with language to safeguard them as much as possible. The sheer volume of potential variation, therefore, makes written contracts wise.
What Should You Consider Before Signing an Employment Agreement?
There are several particularly important regulations and policies of which you should be aware before signing any type of employment agreement.
First, is there a probationary period? Professionals do not just utilize probationary periods to analyze their new recruit’s fit. Setting a probationary time frame enables them to dismiss for purposes that would otherwise be inconsistent or inadequate.
Second, are oral offerings included in the contract? As with any relationship, optimistic forecasts of the future are common at the beginning of a work relationship. Nonetheless, your attorney can guide you through a list of solutions for engineers, architects and other specialists if employers’ pre-employment expressions were created negligently or if promises did not materialize.
What Common Aspects of an Employment Agreement are Generally Acceptable?
A professional confidentiality agreement is a part of a contract wherein the engineer or architect promises never to share any data regarding the details of how the employer’s enterprise is carried out, or of the employer’s confidential procedures, plans, solutions, information or equipment.
Similarly, a non-competition clause generally states that for a specified amount of time following the date the engineer or architect stops working as a part of the company, that person will not become employed by a competing firm or a firm focusing on an identical form of business.
An ownership of inventions clause applies to specialists who create or invent something as part of their work. By agreeing to this type of clause, the worker agrees that anything he or she creates while employed, or during a specified period of time following the contract termination, is treated as the creation or invention of the company and not that of the engineer or architect.
A no extra compensation clause specifies that if the worker becomes some type of executive or manager for the firm, he or she will not be subjected to extra compensation for accomplishing these duties.
Of course, this brief guide will be insufficient to help you navigate all the potential issues involved with these types of employment contracts. Their details can vary widely, so seek out a professional for assistance.
Thank you, Hayley, for your post. North Carolina employees should be aware that unless there is a specific employment contract, you are generally an “at will” employee. That means that you can be fired for any reason or no reason whatsoever, so long as it is not due to your being a member of a protected class (race, religion, sex, etc.). Also, covenants not to compete must be deemed reasonable to be enforceable.
Any questions for Hayley? Please post, below. And, if you haven’t already, please sign up to get email delivery of all posts directly to your mailbox, by going to the sign up form. At the same time, you’ll get the download link to my free white paper on the 7 Critical Mistakes that Design Professionals Make during Contract Negotiation and Execution that Sabotage their Projects & Invite Litigation.
Photo: (c) Aidan Jones via Creative Commons license.
As a design professional, you have likely seen your share of construction estimates. You may be in charge of evaluating bid proposals and/or in reviewing projects for value engineering possibilities. Of course, you are almost certainly involved in submitting your own proposal estimates for architectural or engineering services on a project.
I saw a recent blog discussion on construction estimates, and how owners view them. In the situation discussed, a contractor was losing business because his estimates were in nice round numbers, creating the suspicion in the owner’s mind that the numbers were not carefully put together.
One commentator, a civil engineer, said:
As a Professional Civil Engineer and owner’s representative, I am very leary of proposals received that are round (up or down) unless I’ve done business with this group before and am aware of it. I agree with the other comments that it appears as if the bidder has not put much effort into their proposal.
What do you think? Are you leery of an estimate that is a nice round number? Do you round your own estimates? Does an estimate of $21,975 look more legitimate than an estimate of $22,000? Share your thoughts, and your practice, below.
While you are at it, consider taking a 20 question, 10 minute poll on cost estimating processes and best practices. The survey planners are trying to collect as many responses as possible from industry professionals.
The data collected from this survey to develop a benchmark report about construction estimating. Once prepared, the report will available to anyone as a free PDF download from the survey planners’ website.———————— Photo credit: Håkan Dahlström.
Last week I discussed copyright issues under ConsensusDOCS and AIA form contracts. This week, we’re taking a look at how to protect copyright in your design documents when you are not using a standard form contract.
If I’ve learned one thing about working with a lot of design professionals over the past decade, it is that many of them– too many– are just plain too nice. That’s right, too nice. They send polite letters of proposal to the client, and then begin work on a handshake deal. Or, they willingly sign on to the Owner’s contract without pushing to negotiate more favorable, mutually beneficial contract terms. Under the maxim that “no good deed goes unpunished,” sometimes such clients are giving away their copyright ownership without being appropriately compensated.
Unscrupulous, or at least naive, owners sometimes believe that because they paid for design documents, they own them and can use them for any purpose. This, of course, is *usually* not true. However, sometimes the owner agreement states that the designer’s work product is created as a “work for hire” or otherwise provide that the owner has an unlimited ability to use the work product regardless of the circumstances. Such clauses should either be removed altogether or negotiated up front, with appropriately compensation being provided for such copyright ownership.
If you are working under a letter proposal, it should at least include language indicating that the design team maintains ownership rights in the design documents. Further, you should make explicit that the owner has no right to continue to use design documents in the event the owner terminates your contract unless and until full payment for such documents is given to the design team. Even better would be a requirement that the owner indemnify the design team from any unauthorized use of the design documents. (Hey, a girl can dream, can’t she?).
Most importantly, realize that without the built-in protections of the standard agreements, it will be much more difficult to enforce your copyright ownership in your plans & drawings. For a few moments extra work on the front end tweaking your letter proposals or negotiating your owner contract, you can save countless hours of heartache on the back-end.
Do you have standard copyright ownership language in your non-form construction contract? Ever had to fight copyright issues with the owner? Share in the comments below. And, if you have not already done so, sign up for direct email delivery of blog posts right to your in-box.
Photo (c) Jens Rydén via Creative Commons license.