Construction law insights and updates from May 2026

By Emma Peterson. 

Staying ahead of joint employer rules, bid liability, cost escalation language and more.  

For many contractors, managing the legal and operational side of their roofing businesses often takes a back burner to their passion for their trade and craft. However, this can cause problems down the road as navigating the legal landscape of business ownership is crucial to adhering to regulations and building long-term success. To help contractors manage this side of their business, Trent Cotney, a partner at Adams and Reese specializing in roofing litigation, releases a monthly newsletter summing up legal and regulatory changes affecting roofing. Here’s a summary of what he covered in his May 2026 newsletter.  

1 – NLRB withdraws the 2023 joint-employer rule 

The National Labor Relations Board (NLRB) has formally withdrawn the 2023 joint-employer rule. In this rule’s place, the 2020 standard is returned. This standard is much narrower and requires “evidence that one entity exercises substantial direct and immediate control over essential employment terms of another employer’s workers.” 

What this means for contractors: Overall, this is a contractor-friendly change. The narrower rule adds certainty to employment conditions that should make employment of subcontractors easier. However, contractors must still be vigilant about employment lines on the jobsite and field crew still must communicate through each subcontractor’s designated supervisor. 

2 – Florida court holds that invitation to bid does not create a subcontract 

The Florida Second Court of Appeal just addressed the case of Willis A. Smith Construction, Inc. v. Keathley, No. 2D2025-1900. This case centered on the question of whether a general contractors could claim workers’ compensation immunity for a worker’s injury that occurred “while visiting a project site before submitting a subcontractor bid.” The court found that because the invitation to bid did not create any contractual obligation, did not specify binding scope and did not guarantee work, the contractor could not claim the compensation immunity.  

What this means for contractors: This case is a good reminder that “pre-bid communications, job walks, site visits and invitations to bid do not automatically create subcontractor status or workers’ compensation immunity.” As such, general contractors must be careful about requiring site-access language and proof of insurance for anyone visiting a site prior to contract awarding.  

3 – Allocating risk when asked to install material and systems 

Contractors are often asked to install products that they did not “select, design, manufacture or test for compatibility with existing conditions.” This can cause issues when it comes to warranties, as manufacturers often warrant their own products but not the whole system.  

What this means for contractors: To avoid issues related to this, contractors should include a manufacturer system compatibility clause that makes it clear the contractor is not responsible to failures caused by “product incompatibility, design decisions, concealed conditions, manufacturer limitations or owner-directed substitutions.” This is an example of that type of clause: 

Contractor shall be responsible for installing the materials, products, components, and systems within Contractor’s scope of work in accordance with the Contract Documents and applicable manufacturer installation instructions made available to Contractor. Contractor does not warrant, guarantee, or assume responsibility for the compatibility, integration, performance, chemical interaction, physical compatibility, adhesion, fastening performance, thermal movement, moisture tolerance, structural suitability, code compliance, or long-term performance of any material, product, component, assembly, substrate, existing condition, adjacent system, or owner-selected item that Contractor did not design, manufacture, specify, select or expressly approve in writing. 

*Read the whole provision.

4 – Navigating project costs with rising material prices 

In the era of tariff changes, freight distributions, supply chain volatility and regulatory constraints, it is not uncommon for project costs and schedules to shift after a contract has been signed. This creates a legal question of who bears the risk when project costs change after a bid. 

What this means for contractors: Contractors must be careful to make adjust their contracts so that they do not “assume a stable market that no longer exists.” What does this mean? Include things like price escalation clauses, regulatory-change provisions, substitution rights and/or material availability protection.  

And even if you have all these provisions, documentation remains key. Contractors should record everything from quotes to communication expressing availability changes. As Trent puts it, “Without that record, even a strong contract clause may be difficult to enforce.” 

Check out the full May 2026 Cotney brief.