Posts tagged with "Professional Practice":

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Are design professionals liable for failing to anticipate the effects of climate change?

We do not need more vivid reminders that extreme weather events have the potential to cause appalling loss of life and tremendous property damage. The deadly fires that burned through California in November 2018 followed hard on the heels of a series of hurricanes and floods that wreaked terrible human and economic damage from New York to Houston and Puerto Rico. We are becoming increasingly confident that these extreme events are caused by climate change or, at any rate, that climate change makes them significantly more likely. Recently, the Fourth National Climate Assessment warned that climate change will cost the United States economy hundreds of billions of dollars annually by the end of the century. Increasingly, stakeholders in the construction process are recognizing that buildings need to be designed to withstand the climate conditions of tomorrow as well as today. Naturally, this leads to the question of whether there will be a legal liability when design professionals fail to anticipate the conditions brought about by climate change. There are several avenues by which a design professional might be held liable for failure to adapt to climate change. This article focuses on torts and tort-like duties, which represent a significant risk for design professionals. There are other sources of liability, though. Contracts, statutes, and regulations may all impose particular requirements on architects and engineers. Representations that a project complies with certain standards might also generate litigation. For example, in the wake of the recent California wildfires, the state’s largest utility company was sued by shareholders alleging that it was liable to its shareholders for failing to prevent the fires. Tort law is the body of law that governs our duties to others and the damages that may be due if those duties are violated. It is tort law that generally governs lawsuits over medical malpractice, for example, the injured party claims that they should be compensated because the medical professional’s actions fell below an acceptable standard of care and caused their injury. Under tort law, the design professional owes a duty toward those who could foreseeably be impacted by his or her actions—potentially extending beyond those to whom design professional have contractual duties (such as project owners) to include others, such as users or neighbors. Generally, the duty extends only to those who suffer physical injury to person or property—a tenant whose possessions are damaged by floodwater might have a claim against the design professional; the store across the road that loses business due to a building closure very likely does not.

Tort suits alleging liability for failure to adapt to climate change are unusual, but there are signs that they may be becoming more commonplace.

Tort suits alleging liability for failure to adapt to climate change are unusual, but there are signs that they may be becoming more commonplace. An Illinois insurer recently filed (and then dropped) lawsuits alleging that various state municipalities were responsible for payouts because their stormwater management plans did not anticipate increased rainfall that caused flooding. In the wake of Hurricane Katrina, plaintiffs argued, with some success, that it was foreseeable to the US Army Corps of Engineers that a navigation channel would change the local microclimate in ways that exacerbated hurricane damage (St. Bernard Par. Gov't v. United States, 121 Fed. Cl. 687, 721 (2015), rev'd on other grounds, 887 F.3d 1354 (Fed. Cir. 2018), petition for cert. filed, No. 18-359 (Sept. 9, 2018). Tort-like duties may arise in other contexts. Contracts might impose tort-like duties upon design professionals. For example, an architect whose contract specifies a useful life for a building might have a duty to anticipate the effects of climate change during that timeframe. Similarly, statutes can impose tort-like duties and may even be enforceable by private plaintiffs—a not-for-profit was recently found to have the standing to sue an oil company over allegations that its vulnerability to flooding made it incompatible with “good engineering practices” under the Clean Water Act. So, what is the standard of care? Simply put, design professionals have a duty to exercise the care of a reasonable practitioner in the location. Unfortunately, complying with this simple standard can be tricky, and the door is often open for someone to argue after a problem develops that the architect or engineer did not exercise the required level of care. The best way to minimize the chances of that door being opened is to pay careful attention to local best practices.

Compliance with local codes does not insulate the design professionals from liability if their peers are building to a higher standard.

Building codes are one potential pitfall. While failure to comply with local building codes can lead to a finding of a per se (i.e., automatic) violation of the design professional’s duty, compliance with local codes does not insulate the design professionals from liability if their peers are building to a higher standard. Design professionals would be well-advised to be aware when local codes are outdated or backward-looking. For example, most states’ building codes do not account for sea-level rise. Similarly, relying on locally available climate data or projections may not be enough to protect the design professional from liability. Today, an architect in New York would have access to well-founded floodplain maps that take into account the potential impacts of climate change. However, this was not always the case. When Hurricane Sandy struck in 2012, many communities’ FEMA maps dated back to 1983. In this situation, it would be more difficult for a design professional to claim that reliance on official floodplain data was reasonable. And this is a significant problem—a 2017 government audit found that 58 percent of FEMA floodplain maps nationally were out-of-date. Further, although New York City benefits from an additional set of FEMA-drawn maps that anticipate the impact of rising sea levels, this is not the case nationally, meaning that even a brand-new floodplain map represents the chance of being hit with a flood in the last century rather than the next one. Practitioners should also be aware of codes governing public development. Future plaintiffs could argue that they are admissible to attack or to buttress expert opinions on the prevailing standard of care for private development. Our practitioner in New York should be aware of the city’s new Climate Resiliency Design Guidelines, which identify climate change risks and appropriate resiliency interventions for city projects—such as raising machinery when building in a potential floodplain. New York is not alone—various other state and local bodies, such as Boston, have developed or are developing similar standards. The Illinois lawsuits discussed above relied, in part, on rainfall predictions in the Chicago Climate Action Plan. Similarly, plaintiffs may argue that various nonbinding standards show prevailing practice. Industry bodies such as the American Society of Civil Engineers are attempting to develop such standards, and the Canadian Engineering Qualifications Board has published standards for engineers adapting to climate change. There is also the risk—as some design professionals have experienced with LEED certification—that undertaking to comply with otherwise nonbinding standards could create legal obligations. Our climate is changing rapidly. Design professionals already have plenty of incentives to make sure that our buildings and infrastructure are ready. A further incentive is that it reduces the risk of tort liability. Larry Dany is a partner at Eversheds Sutherland (US) LLP where he leads the Construction Industry Practice Group in New York City. He helps clients across the construction industry resolve a wide variety of complex business and legal challenges through planning, contract negotiation and drafting, dispute avoidance, claim management, arbitration, and litigation from inception through jury trial in state and federal courts across the country.  Nicholas Boyd is an associate at Eversheds Sutherland (US) LLP. He advises corporations, financial services companies, and state agencies on complex business and civil litigation matters. His practice has a particular emphasis on antitrust disputes, class actions and construction lawsuits.
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Making money as an architect is majorly affected by where you work

Architecture is notoriously known as one of the less lucrative professional fields in the United States, especially for young practitioners. But according to a new report by the Bureau of Labor Statistics, where you live and work as an architect can majorly affect your annual income now and in the future. Forbes recently reported on the agency’s updated Occupational and Employment Statistics data, which reveal where architects can earn top salaries. For fully-licensed architects working full-time in the field as of May 2017, these are the average incomes found within the top 5 states: New York: $109,520 Massachusettes: $103,920 Texas: $99,580 Arizona: $95,220 California: $95,060 Alaska, of all places, provides the sixth-highest average salary to practitioners, followed by Alabama, New Hampshire, West Virginia, and Minnesota. Forbes noted that if the District of Columbia were included as a state, it would rank third. Per the Occupational and Employment Statistics data, the 2017 mean annual wage for Utah, the worst state to practice architecture in terms of earnings, was $67,520. Arkansas, Maine, Idaho, and Vermont trail behind as well, offering average salaries that, when calculated altogether, hover at $70,725. In thinking about this, it’s important to consider just how many architects work in the country. According to the report, there are an estimated 103,100 architects employed in U.S. firms. California boasts the most architects with 13,880. New York has about 12,740. From there the stats drop dramatically with Texas employing 8,730, as Illinois and Florida employing 5,140 and 4,490 respectively. While these stats offer huge insights into geographical demographics, they do not break down top earnings by ethnicity, race, gender, or age. It’s no secret that even in the highest-ranking state on this list, New York, junior architects and interns—or up-and-coming designers usually under the age of 30—receive significantly less money until they earn their licensure. Even then, in some cases, those newly-minted architects aren’t given promotions or raises. It depends on the ethics and goals of firms in which they work. For women and minority architects, the reality can be just as harsh, no matter the level. Kim Dowdell, the new president of the National Organization for Minority Architects (NOMA), recently told AN that the wealth gap in the U.S. trickles so far down that young minority students are less and less likely to pursue the profession due to the cost of an architectural education. “Many of my colleagues have really high levels of student debt coupled with comparatively low professional salaries (consider doctors and lawyers) and limited flexibility and financial freedom,” she said. “How can we as an organization motivate or incentivize people to pursue architecture knowing that compensation is a challenge and the student loan debt is higher than ever?” Pay equity is arguably one of the biggest issues in the industry today. In February, The Architects’ Journal released its 2019 report on the U.K.'s gender pay gap, which unveils all documented salaries at firms that employ 250 or more people. Legally, these large-size practices must publicly reveal their gender pay gap in an effort to spread awareness on the issue. According to the article, Foster + Partners, which employs 1,061 people, includes 36 percent female architects who earn a median pay that’s 6.9 percent lower than their male counterparts. Zaha Hadid Architects has nearly the same amount of women on staff as Foster’s office, but the median pay gap is 21 percent. Arup, the global engineering and design firm, pays its female employees 16.9 percent less. Here in the U.S., where it's not a requirement to disclose firm-wide salaries, people are beginning to think more seriously about how gaps in gender, race, and pay equity may affect the internal culture of a firm and the subsequent projects produced its employees. Last summer, Jeanne Gang revealed she had closed the pay gap at Studio Gang, becoming the first firm in the country to do so. As Gang pointed out in her Fast Company article, the pay gap is one of architecture's greatest injustices and diversity in design isn’t just about filling a quota with different faces of different colors in a single office. It’s about recognizing the value that architects of all backgrounds bring to the table, and compensating them appropriately. Like any profession, the dollar amounts for an architect's salary will differ from state to state, but the respect for the mind and skills of a designer, no matter their race, gender, or language, should be the same across the board. That, according to Gang, will truly allow creativity to flourish.
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Junya Ishigami ordered to pay interns after Serpentine uproar, as Elemental ends internships

After 2019 Serpentine Pavilion designer Junya Ishigami came under fire last week for hiring unpaid interns, the online fury, and response from Ishigami, has been swift. The Serpentine Gallery has told the Tokyo-based Junya Ishigami + Associates that it must pay anyone working on a Serpentine project, and the surrounding discussion has raised larger questions over the value of labor in architecture. The furor began on March 22, after architect Adam Nathaniel Furman revealed an internship posting for Ishigami + Associates on Instagram. Prospective employees were expected to work 13-hour days, six days a week for free, and would have to supply their own computers and software. Internships were expected to last 8-to-12 weeks, “or more.”
The Serpentine Gallery, which only uses paid labor on its installations, told the Architect’s Journal that it was unaware of the practice and would contact Ishigami + Associates over the matter. Now it appears that the gallery has ordered Ishigami to pay any interns working on the pavilion. While the problem has been framed as something that’s ubiquitous in Japan—the 2013 pavilion designer Sou Fujimoto was also criticized at the time for using unpaid labor—that doesn’t mean unpaid internships aren’t prevalent elsewhere. After the news originally broke, commentators and architects spoke out and provided examples of studios that still don’t pay their interns.
 
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Alleged email from Lot-ek Architecture & Design New York, March 2018. The office have been approached for comment

A post shared by Adam Nathaniel Furman (@adamnathanielfurman) on

Alejandro Aravena’s Elemental reached out to Dezeen yesterday in a collective open letter and announced that it would be taking the drastic step of ending all internships. The studio, which claims that it has hosted over 150 interns over the years, framed the move as not wanting to be seen as exploiting its interns in an atmosphere of hysterics. The firm laid out a number of benefits that its interns had received in the past, including a “transfer of knowledge,” but also conceded that prospective applicants would need to move to Chile and support themselves for 4 months. In a quote pulled from a comment below the recently recirculated 2016 Archinect editorial, “Brexit: a chance to roll back the interventionist state and unleash entrepreneurial creativity,” Patrik Schumacher of Zaha Hadid Architects laid out his stance on the issue. In his defense of unpaid or low-paid internships, Schumacher claimed they are the result of a well-functioning market, where such internships are transactions between employers and their employees, and that students had the option of not accepting them. Additionally, he claims that mandating internships be paid would be the government meddling in the free and open competition between companies. “I’m just happy that there is some momentum on this,” said Adam Nathaniel Furman, who has regularly been posting exploitative job listings via Instagram under the hashtag of #archislavery. “It seems to pop up every few years but nothing is done, however now with the model of metoo and other forms of communal pressure, I think it is time to end these practices which are exclusionary of those from less well-off backgrounds (I have heard so many stories of those from less well-off backgrounds leaving the profession because of encountering this culture), and exploitative of those who do take them up. I’m hoping this will start a chain reaction where the whole ecosystem of low paid cultural commissions, unpaid competitions and free pitch work that this sustains, is finally blown to smithereens and consigned to the scrapheap of history where it belongs...”
Junya Ishigami + Associates declined to comment when reached for this story.
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Know Your Worth: AIA launches campaign tackling the unpaid internship

The AIA's Center for Emerging Professionals has launched a new campaign that seeks to address the issue of unpaid internships. The campaign aims to inform "all generations of architects" of the significant contributions that Emerging Professionals bring to the field as well as the value of being paid a substantial amount for one's work “That’s the legacy and history of our profession—this apprenticeship," said Klimatic Architecture principal Susan Schaefer Kliman in one of two campaign videos featured below, "but just because it’s an apprenticeship and a time where you’re still learning, doesn’t mean that you shouldn’t get paid.” The campaign page provides resources such as a direct link to the Fair Labor Standards Act, the AIA Code of Ethics, and as well as information on AIA's "intern tilting page." AIA also equipped users with a Compensation Survey Salary Calculator, a tool used to provide details on compensation information by region and firm size.   https://youtu.be/9BJEwHrpGzk https://youtu.be/GIqXw-BknYk
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July Architecture Billings Going Strong as Average Compensation Stagnates

Summer isn't slowing the demand for design services, according to the AIA's latest economic figures. In fact, numbers are on the rise. The AIA's Architecture Billings Index (ABI) for July increased more than a full point spike in non-residential construction activity from June's ABI score of 51.6 to 52.7 (any score above 50 indicates positive growth). Most notably, the new projects inquiry index produced positive results with a substantial increase from 62.6 the previous month to 66.7 in July. While numbers lapsed in most regions in July, the Midwest came out strong climbing to 50.8 from 48.3 in June. The Northeast fell more than a point from 55.6 in June to 54.3. The West slipped ever-so-slightly from 51.2 to 51.1. And the South dropped to 54.2. Mixed practice was the only sector to pull through and show significant progress shooting up more than four points to 56.9 in July. The other industry sectors experienced a small decline: commercial / industrial (54.2), multi-family residential (53.3), institutional (50.6). “There continues to be encouraging signs that the design and construction industry continues to improve,” said AIA Chief Economist, Kermit Baker, in a statement. “But we also hear a wide mix of business conditions all over the country, ranging from outstanding and booming to slowly improving to flat. In fact, plenty of architecture firms are reporting very weak business conditions as well, so it is premature to declare the entire sector has entered an expansion phase.” In spite of the industry's promising growth, the same positive trend has not been reflected in the compensation for architecture positions. AIA published its recent compensation survey, revealing minimal change in salaries since the recession in 2008. "Between 2011 and 2013, average total compensation for architecture positions—including base salary, overtime, bonuses, and incentive compensation—increased only slightly over one percent per year, barely more than the average increase in compensation between 2008 and 2011, when the construction sector was still in steep decline," the report read.