|In This Issue|
Thank You To Members Who Contributed To The ASM Political Action Committee
E. Amanti & Sons
ICR Drywall, Inc.
David and Dira Cannistraro
J.C. Cannistraro, LLC
American Plumbing & Heating
Costa Brothers Masonry
Fall River Electrical
Enterprise Equipment Co., Inc.
Coghlin Electrical Contractors
Daniel Marr III
Salem Glass Company
Pizzotti Brothers, Inc.
Richard W. Reid Electrical Co.
|ASM Recent Events
ASM Paid Family And Medical Leave Seminar held on May 14 in Waltham. Our speakers were William Alpine, The Director of The Department of Family and Medical Leave and David B. Wilson of Hirsch Roberts Weinstein LLP.
ASM recently had an opportunity to meet
with Senate President Karen Spilka to talk about subcontractor issues and the
state of the Massachusetts economy. Pictured are ASM President Sue Mailman,
President Elect Peter Gormley, Directors Mac Lynch and Peter Townsend, and CEO
ASM Opioid Forum held on April 24 in Waltham.
This two hour forum focused on the key tools and resources
members need in their business to address the opioid epidemic.
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|ASM 24th Annual Golf Tournament
Don’t miss the most enjoyable construction industry event of the Summer – ASM 24th Annual Golf Tournament, on July 15 at the International Golf Club in Bolton! Reserve your foursome or twosome now, because player spots are going quickly – and always sell out by the end of May! And, for greater impact, please consider our many great Sponsorship Opportunities, too! The Golf Outing is ASM’s most important fundraiser, providing needed revenue to keep ASM going. SO, please show your support – and get great publicity and recognition in return!
To sign up to play, click here. To view the sponsorships still available, click here.
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|ASM to participate in upcoming Northeast Buildings & Facilities Management Show & Conference- June 12 & 13. DCU Center, Worcester
ProExpos Group is
proud to present the 14th annual Northeast Buildings & Facilities
Management Show & Conference. This event will feature over 250 exhibitors
displaying products and services necessary for the operation, management,
maintenance and renovation of buildings and facilities in the greater New
concurrently with the trade show is an educational conference featuring 22
individual one-hour talks covering a wide range of topics including: LEED,
Green, Sustainability, Energy, Building Commissioning, Facility Maintenance,
Construction and Renovation Planning. AFE provides CEU's & BOMI provides
CPD's for all 22 Conference Talks.
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|Welcome New Member
W.T. Kenney Co.,
Inc.- Watertown, MA
We want to provide the quality painting services to all
of our clients, and we wish to accomplish this in a manner that provides a safe
and rewarding work environment for our employees. We believe that a high
standard of quality in the painting field can be achieved reliably,
consistently and profitably.
Quality is defined by an all encompassing attitude of
pride and commitment in everything we do. To achieve success, we must continue
to deliver superior service to our clients on a regular basis. We also realize
that we must maintain a dedicated and stable group of employees to produce
quality work for our clients. The Company has a proud tradition of rewarding
our employees fairly for the work they perform and treating them with the
respect they have earned through their years of service to the Company.
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|Are You Following ASM On Social Media?
Please take a moment to like the
ASM Facebook page and follow us on Twitter and LinkedIn.
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|Accessing The ASM Hotline
an employer, you face a myriad of issues including employee leave,
discrimination, wage and hour rules, hiring and termination.
As a construction business, you face a host of issues through the life
of a project, including bidding, contract terms, payment and more. When
issues arise, it’s often hard to know what to do. There is an easy way to get quick answers to your questions – ASM’s Hotline –FREE to ASM Members.
How do I access the Hotline?
Send an email to firstname.lastname@example.org. We will forward your question
to the appropriate attorney who will respond by phone or email.
Who are the attorneys?
Construction questions are referred to JohnM. Curran, Esq. at the law firm of Corwin & Corwin LLP, which has served as legal counsel to ASM for more than 65 years.
questions are referred to David B. Wilson, Esq. and Catherine E.
Reuben,Esq., at the law firm of Hirsch Roberts Weinstein, LLP.
Insurance questions are referred to David M. O’Connor, Esq. at the law firm of O’Connor & Associates, LLC.
What if I already have my own lawyer? You can still call the Hotline. It is a privilege of membership in ASM.
What kind of help can I expect?
The attorney will typically spend 5-15 minutes addressing questions
that can be answered easily based on years of experience in their areas
of practice. You will receive information to help you determine whether
to handle the issue yourself or to seek professional help to pursue
legal action. The Hotline is limited in scope and does not include
research or document preparation.
To pursue legal action, do I have to use the Hotline attorney? No.
You are free to use your own attorney or you may retain a hotline
attorney. The choice is up to you and it is a private matter between you
and the attorney.
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Spring is traditionally one of the busiest times
of year for Legislative activity in Massachusetts and ASM has engaged on a
number of issues recently. In April, we saw the House of Representatives pass
their FY2020 state budget. The $42.7 billion dollar budget was approved by the
House after debate on over 1300 proposed amendments filed by different
legislators. This marks the first budget under the new House Ways and Means
Chairman Michael Michlewitz (D-Boston). One amendment filed by Representative
Cullinane (D- Boston) would add an additional $1 million to the budget to fund
the Attorney General's Fair Labor Division to enforce wage laws against
construction companies that violate Massachusetts wage laws.
Earlier in May the Senate released their FY2020 budget,
and with a similar process, will debate hundreds of amendments this week. The
House and Senate will then need to reconcile their budgets before July 1st. Similar
to the House, the Senate has included an amendment to provide additional
funding to the Attorney General's Fair Labor Division
Separately, on May 14, the Joint Committee on
Labor and Workforce Development held a hearing on several bills addressing wage
theft. ASM CEO Mike McDonagh testified before the Committee and raised concerns
about two bills that would create a vicarious liability standard for wage theft
in Massachusetts. While ASM has always supported strong enforcement of current
wage and hour laws, we have continued to express strong concerns with vicarious
liability. These provisions are unduly harsh and unfair to law-abiding
subcontractors and businesses and would hold a company liable and responsible
for bad acts of other independent companies. They would subject a lead
contractor to joint and several civil liability with contractors and
subcontractors for wages, damages, interest, penalties or attorney’s fees for a
subcontractor's wage theft.
These bills would apply to every business entity
in the commonwealth that contracts with another business for labor or services
of any kind. It makes every employer in the commonwealth, in every industry-
not just construction, potentially liable for wage violations against workers
who are not their own employees. It holds the innocent company responsible,
even if they did not know – and had no way of knowing – that the companies they
hired were cheating.
ASM will continue to express
concern with these bills and work with the legislature toward legislation that
that is fair for all, while resulting in strong enforcement and prevention of wage
Click here for
a copy of the coalition letter submitted to the legislature last week.
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|Paid Family And Medical Leave
On Wednesday, May 1, the Massachusetts Department
of Family and Medical Leave announced some changes to the implementation of the
new law that you should be aware of.
Exemption Deadline Extended for Quarter 1
As an employer, if you already provide a paid
leave benefit to your workforce, you may be eligible to receive an exemption
from collecting, remitting, and paying contributions for paid family or medical
leave under the state's PFML law. The benefits offered to employees by your
approved private plan must be greater than or equal to the benefits provided by
the PFML law to be granted an exemption. You can apply for an exemption from
the medical leave contribution, family leave contribution, or both.
The Department’s current guidance requires that
exemptions for private plans must be approved in the quarter prior to the
quarter in which they will go into effect. For Quarter 1 only, however, the
deadline to file for a private plan exemption that will be in effect for first
quarter contributions for paid family and medical leave has been moved from
June 30 to September 20, 2019 . This will allow employers additional time to
contemplate private plan options. Going forward, the Department will continue
to accept applications on a rolling basis, but applications must be approved in
the quarter prior to the quarter in which they go into effect.
Please note that contributions to PFML begin on
July 1, 2019, and the September 20, 2019, extension of the exemption
application deadline only impacts the contribution requirements if the
exemption request is approved. If the exemption request is denied the impacted
business will be responsible for remitting the full contribution amount from
July 1, 2019 forward. Therefore, DFML recommends that businesses in the Commonwealth
consult with their tax advisors as to the implications associated with applying
for a private plan exemption that may or may not be approved.
Employer Notice to Employees
The deadline for employer notice to employees has
been extended from May 31 to June 30, 2019. The notice, which may be provided
electronically, must include the opportunity for an employee or self-employed
individual to acknowledge receipt or decline to acknowledge receipt of the
Click here for
the employer’s guide to Paid Family and Medical Leave.
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|DePaoli Mosaic Named Family Owned Business Of The Year
Business Administration (SBA) has named DePaoli Mosaic Company the 2019 Jeffrey
Butland Family Owned Small Business of the Year for Massachusetts and New
DePaoli Mosaic Company earned the recognition for
being a family-owned and operated small business, with a 15-year track record
that has been passed on from at least one generation to another. Since 1919,
DePaoli Mosaic Company has been New England's leading Terrazzo contractor. DePaoli works with institutional and
commercial clientele including mass-transit facilities, colleges and universities,
public and private schools, and hospitals.
“The Jeffrey Butland Award highlights a special
family business passed down from one generation to another,” said SBA
Massachusetts District Director, Robert Nelson.
“The long term sustainability achieved by the Morgan family is
especially impressive with such a storied company. Congratulations to the Morgan family on all
of the success! “
Founded in the late nineteenth century as the
DePaoli Mosaic Association and incorporated in 1919, DePaoli Mosaic is led by
the third generation of the Morgan family.
Following in her father and grandfather’s footsteps, Leslie Carrio
became majority owner of the business in 2009.
In 2010, Carrio pursued certification from the Massachusetts Office of
Supplier Diversity and was designated WBE/DBE.
“I am honored to accept this award on behalf of
the many families, not just my own, whose hard work and longevity in the
business make DePaoli Mosaic Company a true family business,” said President of
DePaoli Mosaic Company, Leslie Carrio.
“I am grateful to the SBA, both for this kind acknowledgement, and for
making it possible to grow our business in an expanded office and warehouse.”
DePaoli Mosaic Company helped build Boston,
installing terrazzo flooring at such notable institutions such as TD Garden,
Logan Airport, Fenway Park and Symphony Hall. From 1927-2006, DePaoli was
located on Magazine Street in Roxbury.
After a shorter stint in Randolph, DePaoli found a new home in 2015 and
utilized an SBA 504 loan to purchase a new office and warehouse space in
Since 2009 with Leslie Carrio as President,
DePaoli has enjoyed solid growth in sales and retained earnings. Over the past
nine years, sales have increased over 500% while the company's net worth has
tripled. Sales for the most recent
fiscal year were over $9 million; and over 250,000 sq. ft. of terrazzo
installed throughout New England.
Carrio contributes to her community and supports
important causes in several ways, including Andover Coalition for Education,
100 Women Who Care, and pediatric cancer patients. Carrio enjoys helping her local community
staying involved in her children’s schools, church, and opportunities to
volunteer and donate to local fundraisers.
Leslie Carrio, President was honored at the annual
SCORE Boston / SBA awards luncheon along with other 2019 Massachusetts Small
Business Week winners at Assumption College on Wednesday, May 8th, 2019.
About the U.S. Small Business Administration
The U.S. Small Business Administration makes the American
dream of business ownership a reality. As the only go-to resource and voice for
small businesses backed by the strength of the federal government, the SBA
empowers entrepreneurs and small business owners with the resources and support
they need to start and grow their businesses. It delivers services to people
through an extensive network of SBA field offices and partnerships with public
and private organizations. To learn more, visit www.sba.gov
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|McDonald Electrical Shines In Historic Renovation Of Cathedral Of The Holy Cross, Boston, MA
ASM and NECA Boston contractor teams with GC: Suffolk
Construction, Boston, MA; Architect: Elkus Manfredi, Boston, MA; EE: WSP,
Boston, MA; Owner: Archdiocese of Boston
Boston, MA – McDonald Electrical Corp. (MEC),
headquartered in Hingham, MA, has competed the comprehensive electrical and
lighting renovation of the historic Cathedral of the Holy Cross, located at
1400 Washington Street in Boston. The
project was integral to the restoration of the Cathedral’s entire edifice. The project was led by John Fish, Chairman of
Suffolk Construction and David Manfredi, Founding Principal of Elkus Manfredi
McDonald Electrical’s project scope entailed the
highly-detailed retrofit/installation of the Cathedral’s lighting to LED light
fixtures as well as its lighting control system. MEC Project Manager Brian Goode and Foreman
Mike Norton managed a crew of eight IBEW Local 103 journeyman and apprentice
electricians and four telecom technicians in the historic renovation. The project commenced in March 2018 was
completed as scheduled in early April this year.
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|Massachusetts' Prompt Pay Act - A Refresher
By: Corwin & Corwin LLP
The Prompt Pay Act has improved the flow of funds to
those who furnish and pay for the labor and materials in private construction.
It contains important provisions affecting progress payments, change orders,
"pay-if paid", disputes, and suspension of work.
The law applies to prime contractors, subcontractors and
suppliers entitled to file a mechanic's lien on projects where the prime
contract has an original price of $3,000,000 or more. It does not apply to
residential projects of 4 or fewer units, or where the prime contract was
entered into before November 8, 2010.
Here's how the Prompt Pay Act works:
Contracts and subcontracts must provide reasonable time
periods within which periodic payment applications are submitted, approved or
rejected, and paid. The parties may negotiate those time periods provided
they're reasonable and don't exceed the prescribed limits.
The reasonable time period for submission of an application
may not exceed 30 days. The cycle begins with the end of the first calendar
month occurring at least 14 days after the applicant's commencement of work.
Payments are based on actual progress, although milestones may still be a basis
for payment if the time between applications doesn't exceed 30 days.
Once submitted, the reasonable time period for approval
or rejection may not exceed 15 days. But since the prime contractor must
receive, review, and assemble applications from its subcontractors for inclusion
in its own submission, the law allows the prime contractor an additional 7 days
to approve or reject a subcontractor's application. Likewise, the law allows
each tier below the prime contractor 7 days more than the tier above for
approval or rejection of an application from the tier below. The grounds for
rejection are not prescribed by the law and remain subject to the parties'
contract. However, any rejection, whether in whole or in part, must be in
writing, explain the factual and contractual basis for the rejection, and be
certified as made in good faith.
An application for payment that's neither approved nor
rejected within the specified time is deemed approved. To account for possible
oversight or error, an application that was deemed approved may still be
rejected up until the time payment is due, but the rejection must otherwise
meet the statutory requirements for rejection. Meanwhile, a deemed approved
application advances in line toward payment.
Finally, regardless of whether approval was express or
deemed, the reasonable time period for payment of an application may not exceed
45 days after approval.
The law also requires contracts and subcontracts to
provide reasonable time periods within which written requests for change orders
are approved or rejected. The time period for approval or rejection of change
orders may not exceed 30 days after submission of the request, or commencement
of the changed work, whichever is later. The prime contractor, and each lower
tier, is allowed 7 days longer than the tier above for approval or rejection of
a change order request from the tier below. Requirements for submission and
entitlement remain a matter of contract. Rejection may be in whole or in part,
but it must be in writing, explain the factual and contractual basis for
rejection, and be certified as made in good faith.
If a change order request is neither approved nor
rejected within the specified time, it's likewise deemed approved, unless
properly rejected before payment is due. And once approved, whether expressly
or deemed, the change order request may be submitted for payment with the next
application for payment.
Disputes over rejected payment applications or change
order requests are inevitable, but many contracts require resolution of
disputes to await completion of the project. Consistent with the improvement to
the flow of funds, the Prompt Pay Act directs that rejection of a payment
application or a change order request is subject to the applicable dispute
resolution procedure, and any provision that requires a party to delay use of
that procedure for more than 60 days is void and unenforceable.
Pay if Paid
Contract provisions that condition any obligation to pay
upon receipt of payment from a third party ("pay if paid") can shift
the risk of non-payment to those with no connection to the reason for
non-payment and least able to bear that risk. The Prompt Pay Act declares
"pay if paid" provisions void and unenforceable, with two exceptions,
which must be clearly stated in the contract. The party seeking to enforce
pay-if-paid bears the burden of proof as to each element, and if neither
exception applies, it must pay regardless of whether it receives its own
The first exception applies where non-payment from the third
party is due to failure in performance by the party seeking payment. The party
seeking to enforce pay-if-paid must have provided written notice of the
failure, and the party seeking payment must have failed to cure within the
contractual cure period, or if there is none, within 14 days after receipt of
The second exception applies where the third party fails
to pay because it is insolvent or becomes insolvent within 90 days after
submission of the application for payment. But, the party seeking to enforce
the payment condition must have taken specific measures to obtain security and
minimize the risk of non-payment. Those measures are filing documents to obtain
a mechanic's lien before its first application for payment for on-site work,
maintaining, perfecting and foreclosing on the lien, and pursuing all
reasonable legal remedies to obtain payment until there's a reasonable
likelihood further action will not result in payment. The party seeking payment
may question the legal remedies taken, and if not satisfied, may file a
proceeding in court for a quick judicial determination.
Suspension of Work
Unpaid contractors and subcontractors may no longer be
forced to continue work because of contract provisions prohibiting suspension
for any reason, or requiring long notice and cure periods for non-payment. Now,
any contract provision requiring a person to continue working if payment of an
approved amount is not received within 30 days of when it's due, is void and
There are two exceptions:
second exception is when non-payment is due to a default occurring after
approval of the payment, typically where the party seeking payment has
defaulted in some other way, such as abandonment of the project, causing
damages that fairly should be offset against the pending payment. For either
exception to apply, the party seeking to prevent suspension must have given
prior notice of the dispute or default, and paid all undisputed amounts due.
Prompt Pay is the law. And to make sure of that, the Act
also provides that any contract provision which purports to waive or limit the
terms of the law is void and unenforceable.
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|Uncertainty Continues Over EEO-1 Filing Requirements for 2019
By: Hirsch Roberts
year, employers with 100 or more employees (and certain federal contractors)
must submit a completed EEO-1 form to the Equal Employment Opportunity
Commission. The EEO-1 provides demographic information about the
workforce, sorted by job category, including race, sex and
ethnicity. This year, however, there is uncertainty over a new EEO-1
requirement – the inclusion of pay data.
In an effort to
ferret out equal pay violations, the EEOC under President Obama had amended
the EEO-1 form to require that employers additionally submit data about the
wages and hours of the workforce. Before the revised form was
implemented, however, this controversial and potentially burdensome change
was blocked by the Trump administration in 2017, to the relief of many
On March 4, 2019, a
federal court reinstated the new payroll reporting requirements effective
immediately. However, two weeks later when the EEOC opened the window
for employers to file their 2018 EEO-1 demographic data, it did so without
requiring pay data. Worker-advocate groups who brought the lawsuit
against the EEOC argued that employers must also file 2018 pay data during
pushed back and argued that it if employers started submitting payroll data
by the May 31 deadline, the EEOC would not have the time or resources to
process it. Instead, the EEOC sought to extend the deadline to September
30, explaining that the agency intends to hire a private contractor to
collect and compile the data on the EEOC’s behalf.
At an April 16
court hearing, the EEOC also told the court that if the deadline to
collect pay data was any sooner than September 30, 2019, the private contractor
it hired would “walk away” from the project because it would not be able to
satisfy professional standards. By this point, the worker advocate
groups seemed to accept the September 30 deadline, and told the court that
they sought assurances that the EEOC would meet this deadline. The judge
has given the parties until April 22, 2019, to submit proposed orders on how
the court should rule on the EEO-1 pay data deadline.
bottom line is that, at present, employers cannot be sure what the deadline
will be for the submission of pay data, but it seems highly likely that
employers will only need to file their usual EEO-1 report on May 31 without
the need for additional payroll data. Employers may eventually be required to
submit additional payroll data to the federal government, perhaps as early as
September. Regardless, equal pay remains a hot issue and employers are
well-advised to evaluate and monitor their pay practices to ensure compliance
with equal pay laws, including last year’s updated Massachusetts Equal Pay
will continue to update its clients concerning any new developments.
Employers with questions in the meantime should contact Kathleen Berney or any
other HRW attorney.
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|Mass. Appeals Court Re-Affirms General Liability Coverage For Damages Caused By Construction Defects
By: Sakib A. Khan,
In a recent decision, All American Ins. Co. v.
Lampasona Concrete Corp., the Massachusetts Appeals Court affirmed its long
standing precedent that a contractor’s general liability insurance is (usually)
liable for damages to overlaid material caused by a contractor’s improper
construction of a substrate. In this
case, the Owner sued a subcontractor that poured a concrete slab above a vapor
barrier to be a substrate to finish flooring materials. The slab was allegedly negligently
constructed, with the fiber reinforcement improperly placed, causing wicking up
through the slab that subsequently damaged the finish flooring.
The trial court judge determined that the
flooring system (vapor barrier plus slab plus finish flooring) was an
integrated product, and as such certain exclusions in the general liability
policy applied—specifically exclusion for the replacement of improperly
installed work. The Appeals Court
overturned that decision, ruling that only the slab was the subcontractor’s
work, and the finish flooring (installed by others) may be covered by the
general liability policy.
Despite the best efforts of insurers, many
construction defects claims cause some damage to property other than the work
of the negligent contractor, which can create avenues to argue for insurance
coverage and defense obligations.
Careful analysis paired with persistent advocacy will, in many
instances, cause insurers to step up to the plate and defend against defects
claims, and often settle them.
Contractors should promptly consult with counsel
about notifying their general liability insurer as soon as they are aware of a
claimed construction defect.
Attorney Sakib Khan regularly advises owners,
architects, engineers, contractors, subcontractors and suppliers on
construction defects and insurance defense matters.
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|Improve Your Health And Safety Program Through A FREE Research Study!
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