LEGAL ISSUES IN PUBLIC WORKS
EMPLOYMENT LAW ISSUES
Family and Medical Leave Act
 Americans with Disabilities Act
 DO’s and DO NOT’s of Disciplining Employees

EMPLOYMENT LAW ISSUES
FAMILY AND MEDICAL LEAVE ACT
 Protects employees who need leave to deal
with the employee’s own serious medical
condition, or the serious medical condition of a
close relative
 Provides up to 12 weeks of unpaid leave with
job protection
 EXTREMELY Employee-friendly
FAMILY AND MEDICAL LEAVE ACT

Applies to:
 Employers
employing 50 or more employees for
each working day during each of 20 or more
calendar workweeks in the current or preceding
year
 All public agencies are covered employers
 Employees who worked at least 1,250 hours in the
previous year, and have been employed for at least
12 months
FAMILY AND MEDICAL LEAVE ACT
EMPLOYEE RESPONSIBILITIES:
 Employees must provide a medical certification
from a health care provider at least annually
 Employee must notify the employer as soon as
the need for Family or Medical Leave is
necessary, and must identify that leave to be
taken is FML qualifying
FAMILY AND MEDICAL LEAVE ACT
EMPLOYER RESPONSIBILITIES:
 Notify employee needing leave that the employee may have a
right to take family or medical leave
 Provide up to 12 weeks of leave
 Leave may be taken on a continuous or intermittent basis
 Leave may be counted on a calendar year or rolling basis
 Protect the employee’s position, or restore the employee to
the same position at the conclusion of leave
 An employer MAY NOT interfere in any way with an
employee’s right to take FML
AMERICANS WITH DISABILITIES ACT

Originally passed in 1990, amended in 2008

Title I of the ADA prohibits discrimination
against individuals with disabilities in
employment
 Includes
applications for employment
THE ADA
Prohibits Discrimination against employees and
applicants based on disability
 Prohibits Harassment and retaliation like other
discrimination laws
 Unlike other laws, the ADA also requires
affirmative conduct to provide equal access
and equal opportunities
 Medical tests

THE ADA – WHO IS COVERED?
QUALIFIED Individual:
 With a Disability
 With a record of a disability
 Who is regarded as having a disability


What is a Disability?
A medical condition
 Substantially limits one or more major life activities
 Mitigating measures

THE ADA – WHO IS COVERED?

What is a qualified individual?
 Qualified
for the position
 Able to perform the essential functions
 With or without reasonable accommodations
REASONABLE ACCOMMODATIONS

Any change in the work environment (or in the way
things are usually done) to help a person with a
disability apply for a job, perform the duties of a
job, or enjoy the benefits and privileges of
employment.

Examples
Accessibility
 Sign language/computer interpreters
 Schedule modifications
 Different position

THE ADA

PRE-EMPLOYMENT MEDICAL EXAMS AND
QUESTIONS


POST-OFFER MEDICAL EXAMS AND QUESTIONS


Don’t do it
Only if all new hires are required
POST-EMPLOYEE MEDICAL EXAMS AND
QUESTIONS

Only for purposes of reasonable accommodations or if
employee is not performing the job
DISCIPLINING EMPLOYEES
DO:
 Take employee complaints seriously
 Conduct a thorough investigation before disciplining
 Consider progressive discipline where appropriate
 Discipline like individuals and like infractions
consistently
 Meet with the employee with another supervisor present
 Document all disciplinary actions, investigations, and
meetings
DISCIPLINING EMPLOYEES
DO NOT:
 Issue discipline in the heat of the moment without an
investigation
 Treat similarly situated employees differently
 Ignore potential problems
 Issue discipline in front of other employees
 Retaliate against any employee who may be protecting
his/her rights or the rights of others
 Discuss employees’ discipline with others who have no need
to know
 Treat e:mail as a telephone conversation; treat it as a memo
LIABILITY ISSUES
Sovereign and Qualified Immunity
 Design Professionals Liability

SOVERIGN/GOVERNMENTAL/QUALIFIED
IMMUNITY

Qualified Immunity – protects government
employees from personal liability from acts
performed within their scope of duties so long
as the conduct is reasonable and for a proper
purpose. See, Century Management, Inc. v.
Spring, 905 S.W.2d 109 (Mo. App. W.D. 1995).
SOVERIGN/GOVERNMENTAL/QUALIFIED
IMMUNITY

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






Kerr Construction Paving Company, Inc. v. Khazin, 961 S.W.2d 75 (Mo. App.
W.D. 1997).
Independence & MoDOT entered into reimbursement agreement to
pave/rebuild road.
MoDOT retained right to inspect & withhold payment if dissatisfied
Independence contracted with Kerr.
During progress of work Khazin began to inspect
Kerr demanded to know who Khazin was. Reply, “I’m with the state you
dumb SOB.”
Kerr demanded Khazin leave and after more exchanges Khazin left
allegedly hitting workers with truck
Khazin and supervisor met with City and directed them to stop payment to
Kerr.
Court held Khazin and supervisor not protected by qualified immunity.
DESIGN PROFESSIONAL LIABILITIES
Standard of Care: One who undertakes to render
professional services is under a duty to the person
for whom the service to be performed to exercise
such care, skill and diligence as a person in that
profession ordinarily exercise under like
circumstances in the same community.
 Designer Distinct Roles:

Independent Designer
 Agent/Administrator
 Quasi-Adjudicator

INDEPENDENT DESIGNER
Duncan v. Mo. Board of Engineers, Architects
and Land Surveyors, 744 S.W.2d 524, (Mo. App.
E.D. 1988) [One of the Hyatt cases].
 Not owner’s agent
 Responsibility
non-delegable (Missouri, Kansas?)
 Owner and Designer disagree on design (safety or
other)
 As independent agent, designer is liable to 3rd
parties not a party to contract
AGENT/ADMINISTRATOR (CONSTRUCTION
“OBSERVATION”)
“The design community has yet to develop a
fully satisfactory approach to addressing
liability.” BRUNER AND O’CONNER ON CONSTRUCTION
LAW §17:52
 States are split on the interpretation of
standard construction phase exculpatory
clauses. (No reported cases in either Missouri
or Kansas).

AGENT/ADMINISTRATOR (CONSTRUCTION
“OBSERVATION”)


Minnesota: Architect was to provide only “general inspection” of
construction observation. Architect failed to detect lack of roof fasteners on
one side of building. Court ruled in favor of Architect based on contract
exculpatory clause stating not responsible for contractor’s work. However,
court stated outcome might be different if the Architect was a full-time
project representative. Moundsview Independent School Dist. No. 621 v.
Buetow & Associates, Inc., 253 N.W. 2d 836 (Minn. 1977).
Mississippi: Owner had to replace roof on a newly constructed building. Roof
immediately began to leak. Designer contended it was not liable for
contractor’s faulty work by virtue of the exculpatory language in its contract
with owner. Designer’s full-time inspector was informed at least three times
about roof problems but continued to tell owner that the roof was being
properly installed. Court held designer liable. In spite of exculpatory
language, designer had an affirmative duty to exercise reasonable care in
observing and reporting non-conforming work. Designer also had a duty to
employ a competent inspector. U.R.S. Company v. Gulfport-Biloxi Regional
Air Authority, 544 So.2d 824 (Miss. 1989).
AGENT/ADMINISTRATOR (CONSTRUCTION
“OBSERVATION”)


Alabama: Designer contracted for “general observation services” on a roof
project. Contract with owner had typical exculpatory language. Roof leaked
soon after completion. Before completion, designer negotiated a solution to
problem with contractor but did not inform owner. Court ruled, that under
the terms of the contract, designer had , at least, a duty to perform
reasonable inspections. Designer failed to inform owner of a defect that the
most perfunctory of inspections would have uncovered. Watson, Watson,
Rutland/Architects, Inc. v. Montgomery County Board of Education, 559
So.2d 168 (Ala. 1990).
New York: Designer failed to inform owner of construction defects and it
compromise remedy with contractor. Designer’s exculpatory language held
to simply be recognition that the designer does not guarantee the
contractor’s work. The language does not relieve the designer of the duty to
inform owner of known defects. Board of Educ. Of Hudson City School Dist.
v. Sargent, Webster, Crenshaw & Folley, 146 A.D. 2d 190.
AGENT/ADMINISTRATOR (CONSTRUCTION
“OBSERVATION”)
Comments:
 Designers be very wary of full-time inspection
 In spite of exculpatory language a designer expected to
act with reasonable care
 Designers always check with risk manager/attorney/Ins.
carrier on full-time inspection contracts (very fact
specific)
 Owners get what they pay for. Owners be reasonable on
full-time inspection fees.
 Owners demand explicit “reasonable care “ language in
exculpatory clauses
PROFESSIONAL LIABILITY INSURANCE
On unusually large, complex or hazardous
projects, consult risk manager/attorney/Ins.
Carrier
 Policy is a “wasting policy” (aka “pac-man”
policy)
 Coverage Limits include cost of defense.

PROFESSIONAL LIABILITY INSURANCE
Policy has $1,000,000 limit
 Claim is for $600,000
 Cost of defense $1,000,000
 Owner loses case
 Insurance payout $0

STATUTORY REQUIREMENTS: MISSOURI
RSMO. § 432.070
Within scope of the City’s powers or authorized
by law
 Future consideration
 In writing and dated
 Executed by authorized parties

KANSAS STATUTE REQUIREMENTS
No counterpart to RSMO § 432.070
 “Home rule” Statutes in Kansas

CONTRACT REQUIREMENTS CASE LAW
All contracts with a city must be in writing
 All contractors “are charged with notice of that
law.”
 Provisions of Section 432.070 are mandatory.
 Contract made in violation of the statute is
void.

CONTRACT REQUIREMENTS CASE LAW

Purpose of Section 432.070:
● protect the City and the taxpayers!!!
● “prevent extravagant demands”
● “restrain officials from heedless* and illconsidered engagements”
[*neglectful, reckless, careless, unmindful]
STATE REQUIREMENTS
§107.170 RSMO – PAYMENT BOND

public works > $50K

erection, construction, alteration, repair or
improvement of any building, facility, road, street

surety

for all materials and labor

excludes engineers, architects or land surveyors,
environmental assessment and artists
ISSUES IN CONTRACT IMPLEMENTATION
ISSUES IN CONTRACT IMPLEMENTATION
10.02
Unauthorized Changes in the Work
A.
CONTRACTOR shall not be entitled to an
increase in the Contract Price or an extension of the
Contract Times with respect to any work performed
that is not required by the Contract Documents as
amended, modified or supplemented as provided in
Paragraph 3.04, except in the case of an emergency
as provided in Paragraph 6.17 or in the case of
uncovering Work as provided in Paragraph 13.04.
ISSUES IN CONTRACT IMPLEMENTATION
11.01
Change of Contract Price
B.
The Contract Price may only be changed by a
Change Order. Any request for an adjustment in the
Contract Price shall be based on written notice
delivered within fourteen (14) calendar days after
occurrence of the event giving rise to the request
…Thereafter, the CONTRACTOR shall submit written
documentation of its request, including appropriate
supporting documentation, within ten (10) calendar
days after giving notice….
ISSUES IN CONTRACT IMPLEMENTATION
11.05
Dispute Resolution
A. If CITY and CONTRACTOR are unable to
agree on entitlement to, or magnitude of, an
equitable adjustment in the Contract Price in
accordance with Article 11 within fourteen (14)
calendar days from the receipt of supporting
documentation of the request pursuant to
11.01.B., … then a Claim for such adjustment
may be made pursuant to Article 16.
ISSUES IN CONTRACT IMPLEMENTATION
ISSUES IN CONTRACT IMPLEMENTATION
How high?
 How long?
 How much $$$?

ISSUES IN CONTRACT IMPLEMENTATION

MO: Prompt Pay Act

KS: Fairness in Public Construction Contract
Act
ISSUES IN CONTRACT IMPLEMENTATION

30 Days to Pay
ISSUES IN CONTRACT IMPLEMENTATION

“egregious, unwarranted, overbearing,
reprehensible, and without justification”
THANK YOU!

Saskia Jacobse
 saskia.jacobse@kcmo.org

Mark Jones
 mark.jones@kcmo.org

Nelson Muñoz
 nelson.munoz@kcmo.org

Katie Chandler
 katherine.chandler@kcmo.org