Welcome to the sixth issue of the year for The Site Report.

In addition to covering several trending construction law topics in this edition, we have tapped our Labor & Employment Practice Group to provide some updates on issues that are currently impacting employers. These attorneys outline issues to watch for and how to prepare for impending changes to laws and trends in the workplace.

We also wanted to announce that several of the firm’s practice groups and attorneys were recognized in the 2023 edition of Chambers USA, a directory of leading law firms and attorneys.

Chambers and Partners annually researches the strength and reputation of law firms and individual lawyers across the globe. The research process for the United States includes interviewing lawyers and their clients, including influential general counsel at Fortune 100 companies, high-profile entrepreneurs, and significant purchasers of legal services. Considerable credence is given to the opinions of clients. You can learn more by clicking here.

We hope you enjoy this issue and, as always, thank you for reading.

Stephanie U. Eaton - Co-Chair, Construction Group; Vice Chair of Southern Offices, Litigation Department; Editor, The Site Report

and

Julian E. Neiser - Co-Chair, Construction Group; Vice Chair of Northern Offices, Litigation Department

“With a total floor area of more than 10,100 sq ft or about 940 m2, the structure is apparently nearly 50% larger than the previous record-holder in the Middle East, another hot bed for AM in construction.”

Why this is important: Our team has written numerous articles and commented on published articles (3-D Printing, Construction and the Next Frontier, A New 3D Printing Material for Construction could be Capable of Capturing CO₂, and Only 140 Hours Needed to Put Together ‘Europe’s Largest 3D-Printed Building, to name a few) regarding the benefits of 3D printed buildings – faster construction times, reduced carbon emissions, substantial cost savings, and fewer laborers required. The impressive building created by Printed Farms and COBOD featured in 3DNatives’ article also has another significant quality: it was constructed to withstand Florida’s tropical storms, hurricanes, and heat. The building’s design included a cavity and air gap in the walls to allow for natural cooling. Moreover, the building, a luxury horse barn, is the largest 3D printed building in the world, at least for now, at 10,100 square feet. Given all the benefits of 3D printed buildings, this type of construction is expected to grow exponentially. Contractors who want to remain on the cutting edge of construction should become familiar with how traditional construction methods will tie in to these 3D printed structures, and property owners should consider the viability of 3D printed construction as an alternative to stick-building entire structures. --- Stephanie U. Eaton

“The tech giant and other firms are evaluating ways to transform vacant office space for new uses.”

Why this is important: Ashburn, Virginia, an unincorporated locale in Loudoun County, is the home to one of the internet nodes that make the internet work, with nearly 70 percent of all internet traffic in the world passing through Ashburn. Because of its unique locational advantage, Loudoun County has dozens of data centers. Because data centers are so capital-intensive and personal property tax in Virginia is based on depreciated original cost of the property, Loudoun County collects millions in taxes from these facilities. In fact, in recent years, the total taxes collected neared 25 percent of the general fund budget of the county. Even taking into account that the general fund budget is just a subset of a much larger budget, this is still a huge positive budgetary impact for a locality.

However, these facilities can represent a mixed bag from the planning perspective. While the capital investment from the owner is huge and therefore the taxes paid go a long way toward supporting local budgets, converting office space to data centers, as is proposed in Loudoun, presents several problems. First, data centers, when they catch on fire, burn hot, meaning that fire departments need new equipment and training to be prepared, and office areas are clustered, meaning that gaining control quickly is extremely important. Second, offices mean employment, usually well-compensated employment. Data centers typically do not employ many people. Replacing office space with a data center with a comparable physical footprint inevitably means layoffs or relocations. Third, the utility impacts are outsized. While more and more data centers use air cooling, many still use water cooling, which can use hundreds of thousands of gallons per day. While this supports the budgets of water utilities, it also stretches their raw water sources—particularly in drought conditions. Luckily Virginia has not experienced a serious drought in nearly two decades, but in an era of climate change, it is difficult to predict when the next one might be. They also use truly vast amounts of electricity. This means that electric utilities need to find additional support for their base load, extend unsightly high-tension lines, and build large substations. These spinoff impacts to the aesthetics of our neighborhoods make a huge difference to communities.

As the need for data storage and processing continues to expand exponentially and the office space market continues to be soft due to increased corporate work-from-home policies, it is going to be attractive for owners of underperforming office properties to convert them to data center space. It is also going to become more attractive to spread out companies’ footprints. For instance, Henrico County, outside of Richmond, is planning ahead for future data centers. In Hampton Roads, the municipalities of Virginia Beach and Chesapeake have planned corridors for data centers to take advantage of the trans-Atlantic cables that come ashore in Virginia Beach and their relative proximity to Ashburn both through their land-use policies and through investment, including by forming the Southside Network Authority to build a 120-mile, high capacity fiber ring throughout the region.

The bottom line is: Data centers make sense for local governments when they carefully plan the land use approvals to make them work. But careful consideration of comprehensive planning goals, particularly with regard to jobs generation and utility infrastructure (both water and electricity), are extremely important. --- Michael W.S. Lockaby

“Regulators have approved some projects and denied others, without determining whether objections are supported by evidence.”

Why this is important: When deciding whether to approve a solar project, Section 4906.10(A)(6) of the Ohio Revised Code requires the Ohio Power Siting Board to consider whether a project “will serve the public interest, convenience, and necessity.” At least one lawsuit has been filed involving a project denied based on a significant number of comments received opposing the project. Typically, courts defer to administrative agencies’ interpretation of a statute or regulation because of the assumed expertise over the subject matter of the statute or regulation. Based on the current iteration of the rule, it is likely that expressed opposition by community members is a justifiable reason to reject a project for failing to “serve the public interest.” --- Joseph C. Unger 

“Building Better: A Women in Construction Study, based on a survey with 770 women across a variety of construction sectors, identifies three main action items for the industry to focus on: providing women with leadership opportunities, investing in training, and prioritizing work-life balance.”

Why this is important: According to the National Association of Women in Construction (“NAWIC”), analyzing data from the U.S. Bureau of Labor Statistics, women made up 10.9 percent of the entire U.S. construction workforce in 2022. Women’s occupations within the construction industry range from production and transportation work to sales and office jobs to professional and management positions. Without these women filling these key roles within the industry, construction projects would not be completed as well, as timely, or as efficiently, as our clients with women leaders would most certainly agree. Retention of women in the construction industry is especially crucial given labor shortages during and following the COVID-19 pandemic.

Thus, it is important for those in the construction industry to focus on ways to attract and retain women. The "Building Better: A Women in Construction Study" identified three important factors to do so: (1) provide opportunities for leadership within the company; (2) prioritize work-life balance; and (3) offer training. Companies that offer mentors to provide advice to women as their career progresses, as well as sponsors who can advocate for women to advance into leadership positions have a much better success rate at attracting and retaining women. Moreover, companies that are flexible with women who are caregivers to children, parents, or other relatives, will generally create loyalty and a better sense of teamwork than those companies who are inflexible with the varying schedules some women have.

Training should ideally include field and in-office exposure, so women can learn the entire sequence of construction germane to the company’s operations and understand how their work will impact each project. It will also expose the women to more people within the company and to third parties who are performing, supervising, and approving the work. We offer collaborative training to our construction industry clients to discuss best practices for contract negotiation and bidding, project management and documentation, site inspections, and the like. Please contact our Construction Practice Group for more information on how we can help your business with its training needs. --- Stephanie U. Eaton

By: Chelsea E. Thompson

What is workplace artificial intelligence or AI? In its simplest form, AI in the workplace is the use of technology or software to monitor employees’ work performance, gather data, problem-solve, or aid in decision making. This technology can take many forms, but the most popular options include Radio Frequency Identification (“RFID”) badges, speed and location monitors on vehicles, keystroke or mouse activity trackers, work pace scanners, computer-based tests, and resume score assignments. An increasing number of employers are using AI to monitor employees and their work, with the EEOC estimating that, as of May 2023, as many as 83 percent of employers (and 99 percent of Fortune 500 companies) use some sort of AI. 

Click here to read the entire article.

By: Julian F. Harf

While employers cannot police all employee conduct outside the workplace, employee interactions outside of work can – and do – impact the work environment. Indeed, under certain circumstances, inappropriate conduct by an employee outside the workplace may still subject an employer to liability. What constitutes actionable discrimination or harassment, triggering potential employer liability, is often a murky question.  

Click here to read the entire article.

By: Heather M. Garrison

Employee performance is always rated in one manner or another. Best practice is to rate this performance through known, objective processes. In the context of the employment relationship, performance evaluations are an essential tool for providing workers with insight into how managers are making decisions about promotions, equity, and pay. In addition, performance evaluations will most certainly play a critical role if the employment relationship ends and litigation occurs.

The following guidance is intended to assist employers in refining how the process is planned, conducted, and repeated. 

Click here to read the entire article.

By: Carrie H. Grundmann

On July 1, 2023, laws that were passed by the General Assembly and signed into law by Governor Glenn Younkin become effective in Virginia. In the most recent legislative session, a number of new employment laws were passed applicable to Virginia employers.

Click here to read the entire article.

Michael W.S. Lockaby

Member

Roanoke, VA

office 540.512.1824

mlockaby@spilmanlaw.com

Michael Lockaby is a Member in our Roanoke office with a variety of practice areas including governmental capital projects and construction, public-private partnerships, infrastructure, affordable housing, public finance/bonds, and economic development. In terms of construction law and related areas, Mike is well-versed in advising clients in standard and alternative methods of government construction procurement, including the areas of infrastructure, land use, economic development, and financing.

Mike serves as Outside General Counsel to Southside Network Authority; Economic Development Authority of Amherst County, Virginia; and the Town of Bedford Redevelopment and Housing Authority. He is the County Attorney for Botetourt County and the Town Attorney for the Town of Bedford.

His memberships include serving as Vice Chair of the Local Government Section for the Virginia State Bar Board of Governors; serves as the Secretary of the Board of Directors for the Virginia Association of Telecommunications Officers & Advisors; the Local Government Attorneys of Virginia; and the National Association of Bond Lawyers.

Mike received his B.A. from the University of Virginia and his J.D. from the College of William & Mary Marshall-Wythe School of Law. He is admitted to the Virginia Bar, the United States District Court for the Western and Eastern Districts of Virginia, and the United States Court of Appeals for the Fourth Circuit.