By: T. Kelly McKee A recent case before the Fifth Circuit Court of Appeals1 determined that a “Project Completion Incentive” applying to employees on a construction project (the “Plan”) was not governed by the Employee Retirement Income Security Act of 1974 (“ERISA”).2 Former laborer Employees of the construction manager Employer filed a lawsuit in Louisiana […]
Certain Project Completion Incentives May Not be Covered Under ERISA
Including Non-Signatory Subcontractors in Arbitration Clauses in Construction Contracts
Arbitration is an increasingly popular forum for the resolution of construction disputes. It often provides a more predictable procedural process specially designed for the industry in light of construction-specific rules and mediation procedures enacted by alternative dispute resolution providers, such as the American Arbitration Association (AAA). Of course, there are pros and cons to private […]
Subrogation Claims and Arbitration Clauses in Construction Contracts
In Texas, while an insurer can assert a subrogation claim independently of its insured, the insurer still stands in the shoes of its insured, meaning the insurer’s claims are limited to those the insured could bring and are subject to the same defenses. A common defense when a loss involves a construction project is that […]
The Handshake Agreement Should be a Thing of the Past…
As scholars embark on a quest to define the parameters of an acceptable handshake/handshake equivalent and American businesses return to work with a new normal, the handshake agreement should disappear in its entirety from the continuation or start of all commercial construction projects. Jobsite safety, jobsite interaction, screening/testing, the quarantine of sick or exposed workers, […]
Three Factors to Consider When Including a Liquidated Damages Clause in Your Texas Construction Contract
It is common in Texas to find construction contracts wherein the parties agree to damages in advance of a breach of the construction contract. These are liquidated damages and a provision that contains these damages is known as a liquidated damages clause. Despite how common these clauses are, not all of them are enforceable. In […]