LEGAL ISSUES


Building Workplace Culture on a Solid Foundation in the #MeToo Era


By Collin D. Cook and Bailey K. Bifoss, Fisher & Phillips LLP


A


fter Te New York Times published its October 2017 exposé detailing decades of


sexual harassment and assault allega- tions against Harvey Weinstein, countless women and men have been empowered to come forward with their own stories of workplace misconduct. In Weinstein’s case, justice has been


swift and biting; within a week, he was fired from his company and kicked out of the Academy of Motion Picture Arts and Sciences. Te social movement kicked off by Weinstein’s downfall blossomed into a legion of accusations against celebrities and non-celebrities alike. Claims levied against actors, politicians, executives and employees have yielded varying degrees of fallout for the accused.


New Limits Continued from page 16


design professional in this situation, other than discussing the unpaid fees with other parties. Needless to say, this is hardly an “exception” to SB 496’s general rule of non-liability for defense costs beyond the design professional’s proportionate percentage of fault. Finally, all contracts and solicitation


documents (such as requests for proposal, invitations for bid) issued after January 1, 2018 for design services are deemed to incorporate the terms of SB 496.


Impact on Contractors Te most significant impact of SB


496 is that it alters the design profes- sional’s duty to defend a contractor or owner against claims for design errors and omissions. Prior to SB 496, design professionals who had contracted for indemnity had an immediate duty to


www.AGC-CA.org Tese issues are of particular Collin Cook Bailey Bifoss As many know, the conduct itself


is nothing new. In fact, according to a 2016 Equal Employment Opportunity Commission report, 85 percent of women report they have experienced sexual harassment at work. However, now that the issue is front and center, many contractors find themselves reflecting on their own workplace culture and searching for concrete steps they can take to prevent harassment and foster gender equality.


defend against such claims and there was no limit to the defense costs a design professional could be required to pay, which provided contractors and owners with a useful bargaining chip in settlement negotiations. Unless an exception applies, SB 496


removes any immediate duty to defend or indemnify, and instead essentially creates a requirement that there be a determination of a design professional’s proportional share of liability before any such duty arises. Tis reverses the advantage previously enjoyed by contractors and allows design profes- sionals to refuse to commit any resources to the defense of a contractor against claims for design errors and omissions, unless and until they are found to be at fault. Accordingly, contractors and


owners alike will no longer be able to fully shift the cost of defending against claims arising from design errors and


importance for the construction industry, where a 2014 report from the National Women’s Law Center reported that women experience more than three times as much harassment as their non-construction industry counterparts. However, despite the perceived obstacles, the issue is not as intractable as it may seem. Contractors can take simple steps such as creating and enforcing anti-harassment policies, providing real world training, and investigating complaints to reduce incidents of harassment and create a more inclusive workplace culture.


Create, Implement and Enforce Policies


Company policies provide the


foundation for governing workplace behavior. However, even when other


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omissions, and they will face increased exposure to defense costs unless one of the exceptions above applies. Many existing design-build teams are not structured as joint ventures between the contractor and designer; instead, many design-builders retain design professionals under a consulting contract after being awarded a design- build project. Contractors wishing to avoid the


impact of SB 496 will need to structure their future design-build relationships within one or both of the above excep- tions, such as forming joint ventures with design professionals for specific projects. 


Mary A. Salamone is a partner and Dan J. Bulfer an associate attorney with Atkinson, Andelson, Loya, Ruud & Romo. For more information, please visit their website at www.aalrr.com.


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