New Year, New Rules

On January 20-22, the American Bar Association’s Forum on Construction Law will hold its annual winter meeting in San Francisco, California. Construction law, like the industry itself, is constantly evolving, and national conferences like this one provide a valuable opportunity for lawyers practicing in the industry to get together and discuss recent developments, trends, and changes in the law.

One of the presentations that will be given at the conference concerns the interface between employment law and construction. The construction industry has a long and checkered past when it comes to employment issues, and current trends suggest the industry will remain at the jagged edge for years to come. Two prime examples illustrate this point.

As our country heads to another presidential election at the end of this year, the issues surrounding immigration—documented, undocumented, skilled, unskilled, temporary, or permanent—have once again come to the forefront, and are likely to remain there for the foreseeable future. By any measure, the construction industry has a deep and complicated past with immigrant workers. As the legal landscape continues to shift—influenced by Executive Orders, court orders, and state-level legislation—construction companies must remain fully apprised of their obligations and common pitfalls. Ignorance of the law, even when the law is constantly shifting, is seldom accepted as a defense.

Another issue likely to make its way to the ballots in several states this year is the legalization of marijuana. Regardless of the outcome of these state initiatives, marijuana will almost certainly remain illegal at the federal level, and subject to DEA seizure and federal court prosecution. For employers, the questions become thornier. Can an employer ban the after-hours use of a substance that is now legal, at least at the state level? Standards exist for measuring impairment of driving when it comes to alcohol, but not to marijuana, so how does an employer adjust its policies to reflect this uncertainty? When an employer has employees in multiple states, some of which have legalized marijuana and some of which have not, whose rules govern the employee? And what if that employee travels between offices?

It is traditionally said that there was an old curse that went “may you live in interesting times.” The story behind the curse is apocryphal—there never was such a saying. But the essential point is still well-taken. Construction industry participants currently do, and will for the foreseeable future, live in interesting times. As such, timely, accurate, executable advice continues to be valuable, and provide some stability, even as the legal landscape shifts under our feet.