The issue now being appealed before the NH Supreme Court is fairly straightforward:  Do statutes of limitations bar claims asserted by New Hampshire cities and towns as they would bar claims asserted by private parties?  This case arises out of a construction project, and so it is clear that the court’s decision will impact contractors and construction projects. The existing law in NH provides that the State itself is not subject to statutes of limitations. This means that claims asserted by the State, or any State agency or department, effectively never become barred by the applicable statute of limitations.  The question in the case pending before the Supreme Court is whether this doctrine, exempting the State from statutes of limitations, should be extended to apply to claims by cities and towns. It is bad enough that contractors cannot rely on our three-year statute of limitations to bar stale claims by the State arising out of construction projects. If this rule is extended to municipalities, it will greatly expand the range of projects exempt from the application of the statute of limitations. This expanded liability will likely manifest itself in increased insurance and bond premiums, and possibly increased construction costs as contractors try to price their work to reflect this increased exposure.

ABC believes the construction industry has a clear and strong interest in the outcome of this case, and that the voice of industry should be heard by the Supreme Court. ABC will be investing in an amicus curiae or “friend of the court” to represent and express the view of the industry. ABC will keep you informed of the case. As always we greatly appreciate the support of our members so we can confront issues like this that impact construction professionals. Please contact the chapter office if you have any questions. (603) 226-4789

Members of the ABC NH Workers’ Compensation Trust had plenty of reason to celebrate at the Group’s Annual Meeting held in Manchester on June 29th. Fund Year 2015 was one of the most successful in the Group’s 21 year history. Tim Barton, President of the Board of Trustees, announced the distribution of nearly $1 million in dividends to the members. Tim stated that members look forward to the Annual Meeting each June where they receive their annual dividend check.

Fund Year 2015 was the safest on record. When valued at year-end, premiums exceeded losses by 82 percent, resulting in an 18 percent loss ratio, a key indicator of the Group’s profitability.  Tim explained that there are two main reasons for the Group’s success. First, there is an intense focus on safety. Our loss control partners at Contractors Risk Management provided more than 1,000 hours of on-site, industry focused, loss prevention support. When claims occur FutureComp provides aggressive claims management with the goal of returning the individual to productive employment as soon as possible.

This year's distribution represents only a small portion of the Group’s dividend pool. The Group carries more than $2.5 million of “Dividends Payable” after this release ensuring a bright future for the Workers’ Comp Trust.

The Workers’ Comp Trust was formed in the mid-1990s by ABC to provide member companies with an alternative to the traditional insurance market. The Group consists of 32 members representing $59 million of construction payroll. For more information about the Trust contact the chapter office.

In a widely anticipated decision, the National Labor Relations Board has reversed its 2004 decision and determined that a union seeking to represent employees in a bargaining unit composed of employees solely employed by a “user employer” (a company that hires temporary workers) and those jointly employed by the user employer and temporary labor provider is not required to obtain the consent of both employers.  In Miller & Anderson, Inc., the Board held that in determining if a combined unit is appropriate, it will apply traditional “community of interest” factors.  The Board added that, in a combined unit, a user employer is required to bargain over all terms and conditions of employment for unit employees it solely employs, but only the terms and conditions of employment of jointly-employed employees that it possesses the authority to control.  The decision represents yet another repudiation of precedent issued by the Board under the previous Administration, and appears to be a natural progression of the Board’s expansive view of joint employer relationships.

ABC is preparing details for a program this September to provide members an update on related activity, topics will include:

• “Best Practices” to retain your employees, whether competing with union or merit shop competitors 
• Joint Employer Liability decision, impact and how to prepare – Maintaining separate employer status
• Combined Unit Organizing), what to look for, how to prepare.
• The pending Persuader Rule, what it will mean and current status, “grandfathering”
• Ambush Elections – be prepared before you receive the Petition for an Election
• NLRB’s new unit decisions approving smaller units
• Revising Employee Handbooks to meet NLRB new rules
• Drug/Alcohol Testing and OSHA requirements post Nov. 1, 2016
  

Due to a provision in the Bipartisan Budget Act of 2015, all agencies with civil monetary penalties covered by the statute have the authority to raise penalties annually in line with the Consumer Price Index (CPI). Some agencies affected by this increase include DOL, EPA and OSHA. The provision also allows OSHA to have a one-time “catch-up adjustment” in 2016 since the fines have not increased since 1990.

On July 1, 2016, DOL issued an Interim Final Rule increasing the civil monetary penalties, which goes into effect Aug. 1, 2016. OSHA penalties are being increased by 78 percent. OSHA’s website also notes that any citations issued after Aug. 1, 2016, will be subject to the new penalties if the related violations occurred after Nov. 2, 2015. After OSHA makes the initial adjustment, the agency will increase penalties annually with the CPI. (Adjustments must be made by Jan. 15 each year.) Vermont, which has their own Occupational Safety and Health Plans must adopt penalty levels that are as effective as federal OSHA standards.

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