Age Discrimination: How to Recognize it, and What to Do if it Happens to You?

According to a 2017 AARP survey of 3,900 workers over the age of 45, more than 61 percent reported having experienced or having seen age discrimination in the workplace, with 40 percent describing the practice as “very common.” While the detrimental effects of age discrimination are not hard to imagine in regard to the older workers who experience it, age discrimination can also have many negative effects on the companies where it occurs, including depriving the company and younger workers of needed mentoring, leadership, expertise, and experience in the workplace. Age discrimination can also decrease productivity and production by the victims of such discrimination and, consequently, increase employee turnover and preventable hiring and training costs. Claims of discrimination can also cause significant harm to a company’s reputation and to employee morale, and can potentially subject the company to expensive age discrimination claims and lawsuits. Based on this troubling backdrop, coupled with the ongoing skilled labor shortage in the roofing industry, it is important for companies to understand their obligations to older employees in their workforce, as well as for employees to know and understand their rights and remedies against unlawful age discrimination that they may experience in their workplaces.

The Age Discrimination in Employment Act of 1967 (ADEA) bans employers with 20 or more employees from engaging in age discrimination against applicants and employees who are 40 years of age or older. Additionally, the ADEA actually allows employers to favor workers based on age even when doing so adversely affects younger workers who are under 40. However, most states and many municipalities also have statutes or ordinances in place that prohibit discrimination based on age, and many expand those protections to workers of any age (i.e., prohibiting discrimination against workers for being too young) and to employers with fewer than 20 employees. Thus, besides understanding the federal legal framework concerning age discrimination, it is important to also know and take into account the state and local laws where your company is situated to make sure your company is complying with all of the anti-discrimination laws that may apply to it.

Recognizing Age Discrimination

Age discrimination occurs when an employee or applicant is harassed or discriminated against because of his/her age in regards to hiring, firing, salaries, raises, promotions, demotions, discipline, assignments, training, job postings, job descriptions, interviews, benefits and/or other terms and conditions of employment. Examples of age discrimination against people over 40 include, but certainly are not limited to:

  • Firing an employee whom the employer believes has become too old to perform the job
  • Setting age limitations or preferences as a job prerequisite
  • Not interviewing or hiring someone because they are viewed as “too old” to fit in with the company’s culture or other employees
  • Advertising for someone to join a “dynamic, young team”
  • Not hiring older workers because it’s assumed they will soon retire
  • Paying for training for younger employees but requiring older employees to pay for the same training out-of-pocket
  • Not providing training to older employees because “it’s not worth it”
  • Giving younger associates better assignments because they will be there longer than the older employees
  • Turning down older workers for promotions and promoting less qualified younger workers
  • Laying off older employees or forcing older employees to retire because they require higher salaries than younger employees
  • Giving younger employees better health insurance coverage than older employees in order to cut costs
  • Giving unfair discipline or harsher criticism to older employees than that given to younger employees
  • Making or allowing derogatory or offensive comments or remarks in the workplace about someone’s age
  • Engaging in or allowing harassment based on age
  • In states or municipalities that prohibit discrimination against employees of any age, additional examples of age discrimination include, but are not limited to:
  • Not interviewing or hiring someone because they are viewed as “too young” to fit in with the company’s culture or other employees
  • Advertising for a “mature, older” worker
  • Not hiring younger workers because it’s assumed they will quickly move on to another job
  • Paying for training for older employees but requiring younger employees to pay for the same training out-of-pocket
  • Not providing training to younger employees because “it’s not worth it”
  • Turning down younger workers for promotions or assignments and giving them to less qualified older workers because the younger worker “hasn’t earned it yet” or “still has plenty of time” to receive other promotions or assignments
  • Giving unfair discipline or harsher criticism to younger employees than that given to older employees
  • Deeming younger workers’ reasons or need for requesting time off as less “worthy” than older workers’ requests for time off

Filing a Charge of Discrimination

An employee who believes that they have been discriminated against because of their age cannot go straight to filing a lawsuit against their employer in court. Instead, the employee must first file a Charge of Discrimination with the federal Equal Employment Opportunity Commission (EEOC) or with their state (and sometimes local) counterparts, called Fair Employment Practice Agencies (FEPA). A Charge of Discrimination is a signed statement alleging that the employee or applicant was discriminated against or harassed by an employer or its employees because of their age. If the employee is worried about revealing their identity, the law permits another person to file an EEOC Charge of Discrimination on their behalf. Charges of Discrimination can be filled with the EEOC online through its public portal after submitting an online inquiry and being interviewed by EEOC staff.

In states that have their own anti-discrimination laws and a FEPA agency responsible for enforcing those laws, an individual can file a Charge of Discrimination with their state FEPA which will automatically be deemed as “dual-filed” with the EEOC if federal laws apply to the type of discrimination alleged. An individual does not need to file a Charge of Discrimination with both agencies.

Filing a timely Charge of Discrimination is a statutory prerequisite to bringing an age discrimination lawsuit. If an employee files an age discrimination lawsuit in court without first filing a Charge of Discrimination with the EEOC or the appropriate state FEMA, the lawsuit will most likely be quickly dismissed based on the employee’s failure to file a Charge of Discrimination before filing suit.

It is also imperative that the employee’s Charge of Discrimination be timely filed as there are specific deadlines that must be met in order to successfully file a Charge. Specifically, under federal law, an individual has 180 calendar days from the day the alleged discriminatory act or conduct took place to file a Charge of Discrimination based on those acts or conduct. This deadline is extended from 180 days to 300 days in states where there is a state law that bans age discrimination and a state FEPA that enforces the law. Unlike discrimination based on other protected characteristics, the deadline is not extended from 180 days to 300 days if only a local law (and not a state law) prohibits age discrimination.

If more than one discriminatory event took place, the deadline usually applies separately to each event. For example, if an employee was discriminatorily demoted because of her age and then over a year later was fired also because of her age, and the next day files a charge of discrimination, only the claim of discriminatory discharge will be timely because the employee did not file a charge based on the demotion within 180 (or 300 if applicable) days of the demotion occurring. The exception to this rule is for claims of ongoing harassment which must be filed within 180/300 days of the last incident of harassment.

Age discrimination continues to be a problem in the workplace despite longstanding federal regulations that specifically prohibit this form of unlawful discrimination, as well as similar anti-discrimination counterparts enacted at the state and local levels throughout the country. Studies show that older workers are healthier and living longer than their predecessors, are more educated, and, often by necessity, are staying in the workforce longer than previous generations. Yet outdated stereotypes and assumptions about older workers and their professional abilities continue to persist despite research proving time and again that age does not predict overall ability or performance, causing harm not only to older workers and applicants but also to a discriminating company’s bottom line.

To turn this tide, employees must be aware of their rights and how to enforce them and employers must become more cognizant of the significant detrimental effects of age discrimination. Employers must conscientiously assess their policies, practices, and workplace culture, and make changes where needed, in order to create and maintain a workplace culture that embraces diversity and inclusivity and prohibits unlawful discrimination of any kind. Doing this will benefit not just older employees but also the workforce as a whole. It will help companies thrive by creating a healthier, more inclusive workplace culture, generating happier and more productive employees, and preventing costly EEOC charges or lawsuits, which ultimately will lead to a better, more productive work environment for all.

About the author: Marci Britt is an attorney at Cotney Construction Law who practices primarily in labor and employment law. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA, FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Roofers Can Bring About the Solar Revolution in ‘Sunshine’ States and Beyond

Photos: GAF Energy

Pennsylvania, Illinois, and Florida are not often the first states that come to mind when discussing the future of solar energy. Many would think of California, the Golden State, with its sunny weather, mild climate, and new regulation mandating solar on all new construction starting in 2020. But at GAF Energy, a remarkable 50 percent of our growing sales opportunities currently come from Pennsylvania, Illinois, and Florida. While these states lag behind the likes of California, New York, and Arizona in installed solar capacity, they — and states like them —could stand to be some of the most critical players in the next growth phase of solar adoption.

California currently boasts over six million solar homes, demonstrating that there is a clear market for residential rooftop solar in the United States. California’s success serves as a harbinger for other states, even ones not known for their sunshine or progressive energy policies. It comes down to pure economics: the price of solar panels has dropped 99 percent in the last four decades. As solar energy becomes more and more affordable, more and more homeowners across the country are considering the financial and social benefits it can provide. Even residents of the South and Midwest — where electricity is cheap and solar rooftops are few and far between — are starting to show signs of embracing solar as a viable energy source for homes and businesses.

The state of Illinois, for example, is setting some aggressive renewable energy standards to boost solar adoption. More than 40 percent of the state’s electricity comes from coal today. The state plans to sunset many coal plants over the next two to five years, in many cases turning to solar instead. In 2017 the state implemented the Future Energy Jobs Act (FEJA), which infused $230 million into solar power and mandated that 25 percent of electric power come from renewable sources by 2025.

By including solar as an offering, roofing contractors can increase customer satisfaction as they boost their bottom line.

In Pennsylvania, solar power is up 47-fold in the past decade, and wind energy has increased by more than 230 percent in that same time frame. And there are now more than 90,000 clean energy jobs across the state, up 60 percent in just five years. Moreover, a two-year planning process called “Finding Pennsylvania’s Solar Future” is just getting off the ground and aims to shift 10 percent of the state’s energy from non-renewables to in-state solar by 2030. Pennsylvania also ranked as one of the locations that offered the highest solar premiums when you are ready to sell your home, increasing the median home value 4.9 percent, or $8,589, when you compare a home with solar to one without. 

Finally, Florida is a prime solar environment: it is the “Sunshine State,” after all. As hardware costs have plummeted, financial tools that have helped grow solar in California and Arizona, like solar leases and power purchase agreements, have been prohibited under a law that forbids entities other than a utility from selling power in the state. Last year, however, the Public Service Commission approved the use of residential solar leases in the state on a limited basis, signaling that Florida homeowners could more readily and affordably elect to install solar on their rooftops. Florida locations like Miami have started to more seriously consider the need for climate mitigation and adaptation; renewable energy increasingly seems like a better idea as the city finds itself spending more and more money to battle sea-level rise each year.

Bring in the Roofers

Despite all this great growth in the industry, at the end of the day, no one really needs to put solar on their rooftop, unless, say, they live far off the grid. You can easily and painlessly get power from the grid via your electric company. Humans are creatures of inertia and habit; even many of those inclined to do the right thing and/or save money with solar will put it off indefinitely.

However, every homeowner will need to replace their roof at some point. Turns out, the best time to install rooftop solar is when you are replacing your roof. If you have a roofer install the solar, it becomes one project, one crew, one warranty — and the solar can even help pay for itself, and the roof, over time. How? Homeowners can save money on electric bills by generating clean, renewable energy on their roof. Any excess electricity produced is sent back into the electrical grid for a bill credit, meaning solar can be even more financially rewarding in states with net metering policies. Given all of these benefits, going solar during a re-roofing project just makes sense.

For a roofer, including a solar offering with every new roof will create opportunities to capture a wider set of clients, even in states where solar hasn’t traditionally flourished. By offering solar to those who may have been shopping only for solar but could benefit from a bundled offer, roofers introduce an attractive financial concept to the homeowner, on that also benefits communities and the planet to boot. Furthermore, not only will a roofer make their customers happier by including solar as an offering, but they can also boost their bottom line. A solar attachment rate of just one in four new roofing jobs could increase a roofer’s top and bottom lines by 20-25 percent.

Roofing and solar are at a convergence point: roofers are now able to offer a comprehensive solar roofing product and are the best equipped to sell and install it on a home. By bringing roofers into the equation now, we’re ensuring the same person already on the roof to install shingles is the one installing solar, genuinely protecting what matters most inside the home.

Changing the conversation between roofer and homeowner about what a re-roof means requires changing the entire game, and the impacts have the potential to be immense. Roofers will future-proof their businesses by adding an in-demand product that saves their customers money. The benefits of solar should be front and center in any sales appointment — one project, where roofing installation experts are the ones helping customers save money.

Energy From Every Roof

Solar economics and policy are changing across the country, opening new markets and expanding business opportunities, and the roofing industry must correspondingly adapt. Rooftop solar should be a roofer’s domain. By growing with the solar market and offering bundled re-roof plus solar packages, roofers can bring the benefits of solar to homeowners in states that not only have solar mandates, such as California, but also nontraditional states such as Florida, Pennsylvania, and Illinois. Roof replacement is the perfect time to go solar, and now is the perfect time to start integrating solar with roof replacements. By seizing this opportunity, roofers can begin powering homes across the country, one roof at a time. 

About the author: Martin DeBono is the President of GAF Energy. He previously headed SunPower’s residential North American business and global commercial business and served as President of SunPower Capital. He has held sales and marketing positions at various high technology companies including Cisco, Siebel, Insightful and Pure Networks. DeBono is a decorated naval submarine officer and holds degrees from the University of North Carolina (BS) and Harvard University (MBA).

The ABC’s of Fall Prevention

Photos: Malta Dynamics

Falls accounted for almost 40 percent of fatalities in construction in 2017, according to OSHA, and failure to provide fall protection remains the most frequently cited OSHA violation. Nearly 400 construction workers died in the United States as a result of falls in 2017 alone. These are more than statistics on a page; these sobering numbers mean as much to the roofing industry as they do to any other profession. By nature, roofing jobs require working at heights, where we and our teams may be exposed to fall risks. It’s important to do everything we can to mitigate these risks and ensure that we and our teams go home safely at the end of the day.

Some simple precautions early on can prevent much more dangerous and costly scenarios later. Fall restraint and restricting access to hazardous areas can prevent falls in the first place, which is the preferred approach whenever possible. Guardrails are an excellent, cost-effective way to restrict access to roof perimeters, skylights, roof hatches, ladder access points, and other fall hazards. If your jobsite lacks these safety features, temporary guardrails are available that don’t penetrate the roof and damage it. These portable, free-standing safety rail systems are great for temporary jobsites or one-time contracts, where you aren’t installing permanent guardrail fixtures.

Whenever workers need to access areas in which there is a fall risk, however, fall protection is key. Personal fall protection systems are a cost-effective way to ensure the safety of your team. The basic ABC’s of fall protection are Anchors, Bodywear, and Connectors, which combine to make a complete personal fall arrest system.

Anchors

Anchors are the fixed points on a roof to which personal fall protection gear can be tied off. Anchors provide a solid foundation for any fall protection system, ensuring the rest of the worker’s fall protection equipment is secured to a stable point that can support their weight and the force of a fall.

Many styles of roof anchors are available, including standard single-worker anchors, four-way anchor plates, and swiveling anchor points that allow for increased working range, as well as reusable anchors that can be installed with screws or nails for temporary use on rooftops.

Bodywear

The gold standard of bodywear for fall protection is a full body harness. The full body harness is the roofer’s equivalent of a sailor’s life vest — both can save one’s life in an emergency. Worn properly, harnesses evenly distribute the force of stopping a fall throughout the parts of the body best able to absorb it — across the larger muscles of the legs, shoulders and chest.

Few other pieces of equipment are as personal to the user as one’s harness, so it’s important to find one that fits well and is comfortable to wear. Many harnesses offer optional padding for the back, neck and shoulders to help keep the pressure off, even when wearing a toolbelt. One-piece designs eliminate shoulder pad slippage and help to keep the harness and padding in place, allowing it to be worn safely and comfortably even while moving around on the jobsite.

Connectors

Connectors include self-retracting lifeline (SRLs), shock-absorbing lanyards and vertical lifeline assemblies. These components are what actively arrest a fall and stop an uncontrolled descent. They also assist in absorbing the fall’s impact and diverting some of the stopping force away from the worker’s body and harness.

An important factor to consider when choosing a connector for roofing jobsites is the location of your anchor point relative to the working surface. Most standard SRL and lanyard systems are designed for overhead tie-off, but this isn’t always possible when working on a rooftop. When you’re working on a leading edge — a walking/working surface with an unprotected side or edge 6 feet (1.8 m) or more above a lower level — and you don’t have an overhead anchor point, foot-level tie-off requires a different style of connector that’s designed and rated specifically for these kinds of applications.

Of course, all the best fall protection gear in the world means little if your crew doesn’t know how to use it correctly or fails to wear it because it’s uncomfortable or ill-fitting. Training and proper fitting and use of personal fall arrest systems is an important final step to take with your teams.

OSHA 29 CFR 1926.503 states: “Employers must provide a fall protection training program to workers who might be exposed to fall hazards. Training must include how to recognize fall hazards and how to minimize them.” OSHA cited 1,978 companies for failure to properly train their teams in 2018, up from 1,728 citations in 2017.

Simply purchasing fall protection equipment isn’t enough to keep your workers safe. Your team needs to know how to properly use, inspect and store safety equipment to prevent injury, and your equipment must be properly maintained and kept in good repair. Safety training courses are available from fall protection equipment manufacturers, who can train your teams on how to inspect, use and maintain their products. Knowing how to identify jobsite hazards, having a fall protection plan that meets your jobsite’s specifications and a rescue plan prepared should anything go wrong are all part of any successful training program.

Coming to a jobsite prepared to employ fall prevention, equipped with personal fall protection, and trained in the proper use of your safety systems lays the groundwork for keeping your crew safe when working on roofing projects at heights. These precautionary steps are important to ensuring that your team members don’t become another statistic.

About the Author: David Ivey is a Fall Protection Engineer for Malta Dynamics, where he oversees the engineering and installation of all custom fall protection systems. For more information or with questions about OSHA compliance of fall protection systems, contact him by email at divey@maltadynamics.com.

Standing Seam Roof Clamp Accommodates Variety of Seam Profiles

Dynamic Fastener offers the Standing Seam Roof Clamp, which is designed for use on a standing seam roof. The DFSSRC-03 installs over the clip on a completely seamed, attached roof section a minimum 4 feet or further from the edge with no damage to roof panels or finished seams and no roof penetrations. The clamp accommodates seams up to 1 inch wide, and the unique “flip” design of the DFSSRC-03 allows for fit on both the Butler MR24 and Butler VSR-style seams just by removing the bolts, turning one side of the clamp around the ring and replacing the bolts. According to the company, any roof that meets similar loadings, specifications, and codes of the Butler styles will accept these anchors for safety tie off.

This product serves as a part of a fall protection system with compatible equipment as determined by your competent person. A safety lanyard, of a maximum length 6-foot length, with a deceleration (shock absorber) device and full body harness should be used with the clamp. Clamps have been tested to meet and exceed the following OSHA standards: 1926.502 (d) (2), (3), (4) and (15): Anchorages for attachments of personal fall arrest equipment.

The clamp features durable, all steel construction with zinc electroplate finish, and it designed to be lightweight, reusable, and easy to use. The clamp must be attached to a fully seamed panel and must be attached over a clip that is bolted/screwed down (generally to a purlin). The flange of the clamp must be hooked under the seam before the four bolts are tightened to a torque of 50 ft./lb.

“Contractors tell me they appreciate the ease of installation,” says Ken Webb, Sales Manager, Dynamic Fastener. “Their customers, the building owners, will often request to buy the clamps from the contractor so their maintenance crews can use them as tie-off points when working on the roof. When it comes to safety, you need a reliable product that’s also affordable. You definitely get that with the DFSSRC-03 Standing Seam Roof Clamp.”

LEARN MORE

Visit: www.dynamicfastener.com

Call: (800) 821-5448

The “Roofers’ Choice” winner is determined by the product that receives the most reader inquiries from the “Materials & Gadgets” section in a previous issue. This product received the most inquiries from our July/August 2019 issue.

Flashing Best Practices

Tips on Installing Roll, Step and Roof-To-Wall Flashing

Photo: Atlas Roofing Corporation

Flashing plays a critical role in shielding a roof from water damage. Essential for leak-proof performance, flashing protects intersections of the roof plane and penetrations through the roof surface.

Installation methods and materials can vary based on region and weather. For example, some roofers may use aluminum instead of steel or copper. And some may use caulk on nail holes while others use tar. The most important rule of any roof installation is to follow ARMA guidelines.

Atlas Roofing partnered with professional contractor Mic Barringer, owner of Barringer Brothers Roofing in O’Fallon, Illinois, and asked him to share some of his best practices for flashing installation.

Roll Flashing

Installed along headwalls, roll flashing prevents water from penetrating a roof deck.

Roll flashing comes in a variety of metals, including steel and copper. These durable materials are typically used in Northern states, where roofs are prone to ice dams, and the Southeast, where roofs must withstand high winds and wind-blown rain.

Where Barringer lives in Illinois, the weather doesn’t get worse than an occasional downpour, so he uses aluminum roll flashing.

“Where we are, we get down-directional rain — we don’t get storms here,” he explains. “We even tape our flashing, and people will criticize if it’s not the way they do it — everybody does it differently. But here, this is 100 percent standard.”

How To Install:

  • Pull out the length of roll flashing needed for the headwall and extend it at least 4 inches past the sidewall.

Tip: Pull roll flashing from the center so it doesn’t uncoil and can easily be reused.

  • Adjust roll flashing so the center of the metal meets the bottom of the headwall, then nail it to the roof.

Tip: Push a hammer into the roll flashing as far as you can and slide it across the metal to create a 90-degree angle.

  • If necessary, nail roll flashing to the headwall to help smooth out wrinkles.

Note: Barringer acknowledges that nailing is not a preferred practice, but it gets the length of roll flashing as flush to the headwall as possible. To keep water from shedding behind flashing, he uses Zip System Tape, although he points out that others may use Tyvek. Starting the overlap from the bottom up, he adheres flashing to the oriented strand board (OSB).

  • Cut the extended section of roll flashing straight down, even with the sidewall and nail it to the roof deck, giving step flashing an area to drain off.

Tip: This method takes the place of pre-bents, which can be difficult to fit to the corner. If you end up with a pinhole, simply cover it up later with caulk.

Step Flashing

The small “steps” created by step flashing allow water to flow down the sidewall of a roof.

Like roll flashing, step flashing also comes in a variety of metals, with aluminum and copper being the most commonly used.

Barringer uses pre-milled aluminum step flashing because it already has a perfect 90-degree angle bent into it. And because each shingle is going to drain off, he installs one piece of step flashing per shingle, based on ARMA guidelines.

Figure 1a and 1b: Application of step flashing for a 5-inch exposure. See manufacturer for application instructions for other exposures. Images: Copyright © Asphalt Roofing Manufacturers Association.

In states such as Minnesota, Florida and the Carolinas, roofers typically use steel or copper step flashing and bend it themselves and may also solder pieces together to protect a roof from ice dams and rain, Barringer says.

Ice and water underlayment is commonly installed behind step flashing in states with heavy storms and snow. In O’Fallon, Barringer says they use ice and water on eaves and valleys, but they’re not required to use it on protrusions because they don’t get the type of weather that would warrant it.

How To Install:

  • Start at the outside corner of the sidewall and align the first piece of step flashing with the bottom of the wall, folding the excess portion around the headwall.

Tip: If using aluminum, be gentle when handling it. Because it’s a soft metal, it rips easily.

  • Working up from the bottom of the sidewall, install step flashing below each shingle, coming down at least one-half inch to three-quarter inch over the previous piece to cover nail holes.
  • For the inside corner, cut step flashing down the middle of one side (from the longest edge toward the fold), then fold one of the cut pieces behind the other to form another 90-degree angle. Trim bottom edge of step flashing so that it extends just past the exposure (to prevent it from sticking out beneath the roof-to-wall flashing — see the next section for details).
  • Use Zip System Tape (or Tyvek) to secure the step flashing to the OSB, creating a watertight seal.

Roof-To-Wall Flashing

After roll flashing and step flashing are installed, roof-to-wall flashing can be added to give a roof a beautifully finished look.

Figure 2: Application of step flashing against a sidewall.

Roof-to-wall flashing is almost always going to be steel because it’s tough, Barringer says.

“The roof-to-wall that we do, it’s got a double-bolted bead at the bottom of it, so it sticks up a little bit, but that’s what reinforces it from the wind bending and denting it.”

Barringer says roof-to-wall flashing is pretty hard to mess up. The only thing you don’t want to do is anchor it to the roof instead of the wall because that would leave holes in the roof-to-wall flashing, which defeats its purpose, he explains.

How To Install:

  • Cut roof-to-wall flashing to length and nail it to the headwall.

Tip: Barringer says you can seal nail holes if you like, but it’s not necessary. The Zip System Tape (or Tyvek) and roll flashing are behind the roof-to-wall flashing, so water should easily flow out beneath it.

Proper Installation

When flashing is installed properly,it maintains the integrity of a roof, protectingagainst water damage. But what if the flashing isn’t done right? Would a faulty install void a shingle manufacturer’s warranty?

Barringer says manufacturers can’t guarantee anything when you’re using another company’s product.

Figure 3: Application of flashing against a front wall.

“If you have bad flashing job, it’s not the shingles’ fault that it failed, it’s the bad flashing,” he says.

For more information about proper flashing installation, refer to pages 69-77 of ARMA’s Residential Asphalt Roofing Manual, 2014 Edition.

Plus, watch Mic Barringer and his brother Stevo Barringer demonstrate proper flashing installation methods in Atlas Roofing’s “Hammer Time With Paul” web series, available at https://asphaltlife.atlasroofing.com.

About the author: Paul Casseri is the product manager of the Roofing Shingles and Underlayment Division for Atlas Roofing Corporation. For more information, visit www.atlasroofing.com.

Five Essential Roofing Contract Provisions

Contracts can either be a roofing contractor’s best friend or worst enemy. It is critical that contractors are aware of the provisions within roofing and prime contracts (as subcontracts often incorporate prime contract provisions). Due to the importance of contractual terms and provisions, outlined below are five essential contract provisions that, if not properly drafted, can have harmful consequences to your business and bottom line.

1. Scope of Work Provisions

“Scope of work” issues compose a large part of litigation under roofing contracts. Scope of work disputes typically involve contractors seeking payment for work that was not in the original contract, followed by unhappy owners disputing whether or not they agreed to the work that was performed. Scope of work issues arise when roofing contractors find areas of the roof that need additional work performed in order to successfully complete a project but may not have been adequately referenced within the contract. For instance: when a roofing contractor is performing a contract for a roof replacement, and the roofing contractor — in the process of replacing the roof — finds rotted decking that needs to be replaced, the roofing contractor is likely, and rightfully, going to perform the additional work and charge for the additional material and labor costs. The additional charges can be ripe for disagreement due to the original contract failing to adequately contemplate decking replacement as an extra charge.

Well-crafted scope of work provisions are imperative to include in roofing contracts. If additional work is encountered during a roofing project, as we all know is typically the case, the contract should explicitly state that the extra work (i.e., replacement of decking, fascia, soffits, etc.) will be an additional cost. Just as important, the contract should also state the method of pricing for this extra work.

2. Indemnification Provisions

Indemnification provisions are another important component of roofing contracts. Indemnification is the compensation for damages (or loss) as a result of someone else’s bad acts or omissions. For the roofing industry, indemnification clauses are important because they limit a roofing contractor’s liability.

It is important to note that there are several different types of indemnification provisions within roofing contracts: standard indemnity, super indemnity, and those that fall in between. Standard indemnity is the indemnification of the customer for the roofer’s actions that cause damage to the subject property. Super indemnity includes indemnification from the roofer’s own actions that cause damage, in addition to indemnifying a customer of his/her own acts. For instance: if a customer goes on a roof after hours to move equipment around, tearing a hole in a tarp covering which later leads to water damage, the super indemnity provision allows the customer to make a claim against the contractor — even though the customer’s own act caused the damage.

Indemnification provisions are complex and heavily litigated. Individual states have specific statutes and rules that control indemnification provisions in construction contracts. Due to this, roofers must ensure contracts are sensibly reviewed to ensure that the contract and its provisions comply with applicable state laws.

3. Liquidated Damages Provisions in Construction Contracts

When there is a contract, and one party to the contract breaches it, the non-breaching party oftentimes desires a liquidated damages provision in the contract to limit its damage exposure. Liquidated damages provisions are created to compensate a non-breaching party for the damages incurred from another party’s breach of the contract based on a predetermined amount and can protect a roofing contractor from large losses.

In roofing contracts, liquidated damages are usually tied to timely completion of the work by the contractor — that is, if not timely completed, the project owner is able to collect liquidated damages from the contractor due to failure to complete the project within the set timeframe.

Liquidated damages provisions must be carefully crafted and generally must abide by the following:

  • The damages must be intended to compensate the project owner for the breach of the contract — the liquidated damages provision cannot be a penalty. Courts have found that if the stipulated sum for liquidated damages is too great in comparison to the actual contract amount, the liquidated damages provision will not be enforced.
  • The liquidated damages provision is not enforceable if the non-breaching party contributed to the breach.
  • Because liquidated damages compensate for damages caused during late completion of a project, liquidated damages cannot be sought after the project has been substantially completed since the owner is no longer accruing damages.

These general rules of liquidated damages are important for roofing contractors to be aware of because when a project owner withholds proceeds, the contractor will be ready to make proper arguments to secure payment and potentially void the liquidated damages provision. To void a liquidated damages provision, the contractor can argue that any one of the above liquidated damages provisions has been violated. By proving any of above, the liquidated damages provision may not be enforced by a court and the contractor can successfully collect payment.

4. No Damages for Delay Clauses

Owners try to include limitations of liability and disclaimers within their roofing contracts. This is done to limit a roofing contractor’s ability to collect additional compensation from work due to unexpected delays and other conditions. Typically, under no damages for delay clauses, the roofing contractor is given extra time to complete a project but is not compensated for extra costs incurred due to said delay. No damages for delay clauses have a wide breadth in that they cover delays whether they are caused by an owner or caused by acts of God.

No damages for delay clauses are for the most part upheld in courts of law. However, there are certain circumstances where courts have declined to enforce a no damages for delay clause. If it is shown that an owner has acted in bad faith, the owner defrauded the contractor, or that the owner interfered with the contractor’s ability to finish the project, courts have the ability to decline to enforce a no damages for delay clause.

No damages for delay clauses—which can be found within bid documents—are important for roofing contractors to take note of since it allows roofing contractors to accurately adjust both their bids and work according to the contract terms.

5. Retainage Provisions

Retainage — or the withholding of a predetermined percentage of each progress or final payment — is included in many roofing and general construction contracts. Owners and prime contractors withhold retainage until final completion of the project. Retainage provisions have dual purposes: (1) they are used as an incentive for roofing contractors to complete the project; and (2) are used as protection by the owner in the event of uncompleted or defective work.

Roofing contractors should be wary that retainage can deepen the impact of subpar estimating as 5 percent to 10 percent of the contracted price is typically not paid until final completion of the project.

About the author: David Keel is an attorney at Cotney Construction Law who focuses his practice in various areas of construction law, and he serves as General Counsel of Space Coast Licensed Roofers Association. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

Inside, Outside

I was first introduced to Malinowski’s hierarchy of needs in college during an introduction to sociology class. I must admit, I wasn’t paying very close attention. I was an English literature major, and sociology was just a required elective. My hierarchy of interests was topped by the cute girls I might meet at the local tavern during quarter beer night.

I do remember that Malinowski put the need for shelter right up there with food and companionship as one of human society’s most important components. That concept made intuitive sense to me, but as I sat in the classroom, it never occurred to me how important the buildings themselves — and their roofs — were to educational facilities. Roofs not only protect students and teachers, but they also help preserve priceless works of art and literature — including those in digital formats — inside academic buildings.

The project profiles in this issue document the crucial roles roofs play in educational settings. They detail how roof design and installation, roof maintenance, and roof replacement are all critical functions that must be expertly handled. They also reveal how a school’s buildings can embody and define the institution architecturally.

At Cornell University in Ithaca, New York, crews from Charles F. Evans Company, Inc. replaced the roof systems on the first building constructed on the campus — Morrill Hall, built in 1868. The challenges on the project included bringing the building up to code while capturing its original look with modern products.

On the campus of Sam Houston State University in Huntsville, Texas, crews from Empire Roofing faced similar challenges as they replaced the roof on historic Austin Hall, a building that has been occupied since 1851.

Educational buildings that are less than 150 years old also need to have their roofs replaced. At the Yiddish Book Center in Amherst, Massachusetts, crews from Tech Roofing re-roofed the entire complex, which houses irreplaceable works of Yiddish literature in a building designed to resemble a shtetl, or traditional Jewish town common in Eastern Europe before World War II.

This issue also profiles building envelopes that help embody the design goals of new construction projects, including the Innovation Lab at the Lamplighter School in Dallas and the energy-positive Myrtle Beach Middle School in Myrtle Beach, South Carolina.

While we all probably remember begging our teachers to hold classes outside on a beautiful fall day, it’s reassuring to know that structures like these will live on to serve future generations, thanks in part to the work of dedicated roofing professionals.

Understanding Is the Key to Preventing Trouble Spots With Masonry Chimneys

Restoration work in progress on a historic building shows copper chimney flashing being installed on a recently repaired chimney. Photos: John Crookston

There are almost as many types of chimneys as there are cars, but for this article, I am talking about masonry chimneys, and specifically masonry chimneys protruding through a steep-slope roof. These can take the shape of a simple chimney block unit with a clay flue liner running from the foundation thorough the roof, all the way to massive stone or brick structures with two and three fireplaces built in at different levels of the house. Chimneys can serve as load bearing structures and heating systems for the house. I have worked in homes where the chimneys are constructed so that the hot gas passes up and down through the structure of the chimney to heat the masonry mass before they escape out the chimney top, allowing this heated mass to radiate the heat for hours inside the house to supplement the regular heating system.

Eventually however, the chimney has to pass through the roof and into Mother Nature’s realm, and we as roofers have to deal with keeping rain and snow from working back into the building. Most of this task is accomplished with the flashing system at the roof level, but we need to remember that water and ice can also work through the mass of the chimney itself and cause leakage inside the structure. That is the reason for specifically mentioning masonry chimneys in the title above; when one is dealing with chimneys and water, moisture can be coming from all different angles, and all of these areas need to be addressed.

As part of the repair process, a drip line was cut into the underside of the chimney cap to prevent water from migrating across the surface.

I distinctly remember being at a local supply house years ago when a roofer ordered “a five-gallon bucket of flashing.” At best, plastic roofing cement is a temporary fix or patch, and eventually it has to come off. In my long career working on roofs, I have worked on thousands of shingle roofs and many hundreds of metal, tile and slate ones, too. I didn’t know whether I laughed or cried when the guy said that, but I did want to scream, “Flashing doesn’t come in a bucket!”

Masonry walls and chimneys bear on their own foundations and they move at different rates than the rest of the building. You have to allow for that movement, and you need to channel the water in the direction you want so that it is easier for it to flow off the roof rather than into it. Permanent flashing allows for the movement with hundreds of places where the metal can move while always at the same time directing the water lower on the plane of the roof and toward the bottom edge. Whatever the type of roofing material used (shingles, tile, slate, metal, thatch, etc.) and whatever type of flashing metal you use, the flashing always has to be lapped so that the water flows in the direction of the overlap. Depending on the slope, the lap has to be sufficient to allow for the worst possible amount of water flow you will encounter. The flatter the pitch, the more overlap you need. At less than 2/12 pitch, we start to deal with “flat roofing,” and that has its own challenges, though the principles are the same.

New copper chimney flashings were installed as part of this tile roof replacement project.

I could write about a detailed method to flash a chimney, but on every bundle of shingles sold, there are very good details printed and I would dare to say that not one in a million are ever read or even looked at. In this article, I want to explain the reasons why the details specify what they do. In the preceding paragraph, I mentioned that you have to make it easier for the water to flow off the roof rather than into it. That, in essence, is the principle of all flashing — and roofing, for that matter. If you fight the water flow, you will lose 100 percent of the time. Examples of “fighting the water flow” would be for instance lapping the flashings in the wrong direction, or perhaps building a saddle on the backside of a chimney and not extending it far enough sideways so that the water was trapped in the bottom corners. It could also be something as simple as cutting the shingles or slates too tightly against the flashings. As a general rule, always leave about a 3/8-inch gap between the vertical bend of the flashing and the cut of the shingle. This will allow the water to clean out the debris while keeping the joint water tight. Also, don’t jam the counterflashing tight against the horizontal surface of the flashings. This will also restrict the water flow and could cause leakage.

As an interesting aside, one very common mistake I see with cutting valleys is for roofers to not trim back the top corner of a shingle in the valley as shown on all of the packages. The water will catch on that top corner if it is not cut back and track along the top of the shingle until it finds a way into the envelope of the roof. This applies to all valleys, but in this instance, I am specifically speaking of the valleys created when a saddle or cricket is installed behind a chimney. It is also important to not cut the valley shingles in the center of the valley or the low point. Keep the cut line about an inch out of the center of the valley so that the water can again do your work for you by cleaning out the debris. This will also keep the water away from the top corner of the valley shingle.

Problems With Chimneys

Inspecting and repairing any damage to an existing chimney is an essential part of steep-slope re-roofing projects. Loose mortar, cracks in the bricks themselves and spalled surfaces are obvious signs of water damage.

Proper flashing application is crucial, but many of the problems associated with chimney leakage have to do with the chimney itself. Until the advent of the high-efficiency furnaces, most exhaust gasses from the heating of the building went up the flue of the chimney. When more efficient furnaces were introduced, they reduced this gas and excess wasted heat, yet many were vented into the same flue. By definition, a 50 percent efficient furnace puts half of the energy and heat up the flue, while an 80 percent unit would only vent 20 percent of the heat into the same volume, heating the house with the other 80 percent. It takes heat to create the draft necessary to carry moisture out of the chimney. Any gas will cool when it expands, and we are drastically cutting the amount of heat when installing a more efficient furnace. If we don’t reduce the size of the flue, the water vapor can condense back into water before it escapes from the top of the chimney. Mostly, this occurs in the section of chimney directly exposed to the weather, which would be the part sticking out above the roof line. It was common years ago to see the face of a lot of the bricks spalled or breaking off from the rest of the brick. This was caused by the water vapor condensing and then saturating the brick, freezing, expanding and breaking off the surface. If you still have one of the 80 percent units, it is important that you have a smaller flexible metal flue liner installed to reduce the volume and increase the speed with which the gasses escape. This in normally not a problem anymore, as most units now are 95 percent efficient and are vented out the side of the building using a plastic pipe.

This granite chimney shows signs of damage caused by water migrating underneath the chimney cap.

Very few of the homes built today even have a masonry fireplace or chimney, mostly because of the type of furnace used and modern codes. Most fireplaces installed today are zero-clearance units and are basically a gas appliance similar to a gas stove. Many of the older homes that still have wood burning fireplaces have switched them to a gas burning unit, and this will cause the same problem as switching the older furnaces if a smaller sleeve is not installed to reduce the volume of the flue. The biggest problem with this switch is that the effects are not immediately apparent, but delayed, often by several years. We worked on a large condominium project in the early 70s that had dozens of large chimneys, most with several fireplaces on different levels. At some time in the 90s, they all had gas inserts installed, without changing the size of the flue liners. Not all of the chimneys had problems; only the ones that used the gas logs. No matter how often they redid the bricks on the tops of the chimneys, they kept on breaking and spalling. The flaws in the brick and cracks in the caps caused by the water vapor freezing and expanding also caused regular leakage in the chimneys by loosening the counter flashings and letting water past the step flashings and head wall flashings. The caveat to be learned here is that there is a cause and effect that occurs for every action taken, and before making a change it is important to do some research and determine what the effects will be and what has to be done to make sure that it doesn’t do more harm than good. When roofing an existing structure, it’s also important to determine what other changes have been made to the structure in the past.

Erecting proper scaffolding is often the essential first step in the chimney repair process.

Current building codes and modern engineering make the new homes built more efficient and less prone to these types of problems; however, there are millions of older homes out there that need to be retrofitted or in some case “re-fixed” or “unfixed” to make them work.

The one big advantage we are working with today is that there are very few “roof overs” done on steep-slope roofs, as most districts require that the old roof be removed before a new one is installed. This will allow for all of the flashings to be replaced. If chimneys still exist but are no longer used, the possibility might exist for them to be taken down, having the framing replaced and the opening covered and roofed. If this is done, make sure that you take the chimney down to the height of the ceiling joists, cap it at that point and insulate above it.

When re-roofing an existing structure, it’s important to inspect the roof system for damage and determine if any changes have been made to the structure in the past.

If the chimney is left in place, it is important to have the masonry mass inspected and fixed before the roof is done to avoid damaging the new roof. Install a new flashing/counter-flashing system, and make sure to follow the directions printed on the shingle wrappers. My objective here is not to reinvent the wheel, but to make sense of what they are telling us to do. Many years ago, there was a commercial with a tag line that went “It’s not nice to fool Mother Nature.” The truth is that you can’t. If you work with gravity and nature, on the other hand, you can eliminate a lot of the problems we are fighting with on the roofs and in this business. The choice is yours.

This architectural detail from The NRCA Roofing Manual: Steep-slope Roof Systems—2017 shows the proper method for flashing a masonry chimney. Detail courtesy of the National Roofing Contractors Association (NRCA).
The packaging for shingles often contains product-specific details for flashing chimneys and valleys, such as this diagram for CertainTeed’s Carriage House shingles from the CertainTeed Shingle Applicators Manual, 14th edition. Detail courtesy of CertainTeed.

About the Author: John R. Crookston is a roofing contractor and consultant located in Kalamazoo, Michigan. He has more than 60 years of experience in the roofing industry and has written technical articles for a variety of publications under the pseudonym “Old School.”

The Top 5 Issues in Metal Roof Installation

Metal roofs offer a number of benefits for both homeowners and roofing contractors. Installation problems, however, can cause functional or aesthetic issues that can result in problems, delays and unhappy clients. Following are the five most common roof installation issues and how to solve them.

1. Metal Shavings Causing Rust Streaks

Installing a metal roof requires drilling through the aluminum or steel roof panels to attach them to the substrate. The process creates metal shavings, especially at rivet holes along the ridge cap or when drilling through multiple layers of roof panels.

These metal panels show evidence of rust stains caused by metal shavings. Photos: Gulf Coast Supply & Manufacturing

Those tiny shards of metal can cause rust and stains on the roof, as well as corrosion that shortens the lifespan of the roof. The more layers of metal a crew has to drill through, the more shavings will be produced.

“Shavings are no problem when removed quickly,” says Paul Hope, field service technician for Gulf Coast Supply. “It is when they are left behind that they become an issue.”

“When metal shavings sit on the roof for a week to a month they start to corrode,” Hope says. “That corrosion leads to staining of your panels, and that staining leads to unhappy homeowners.”

Roofers should get in the habit of either sweeping or blowing metal shavings off of the roof at the end of the workday, according to Hope.

2. Improperly Installed Underlayment

Underlayment has to be carefully measured and lapped to avoid moisture infiltration into the building envelope. Local building codes specify lap coverage guidelines and slip sheet placement for underlayment installation.

Underlayment must be carefully measured and installed correctly to prevent moisture infiltration. The underlayment shown here is not lapped correctly.

Underlayment is designed to act as a secondary water barrier in case rain makes it past the metal roof. Some of the most common causes of water intrusion are fastener failure, wind-driven rain in extreme storms, or metal-to-metal connections with no sealant.

Avoiding underlayment issues is easy to do if the crew follows installation instructions and code requirements. If underlayment is not installed correctly, however, replacement costs can be expensive and involve removing the metal roof, replacing the roof substrate and installing new underlayment.

3. Over-Tightened and Under-Tightened Fasteners

Proper fastener installation is critical to the efficiency of a roof system. Because fasteners penetrate the metal roof, underlayment and roof deck, they can allow for water infiltration into an otherwise waterproofed roof.

Over-tightened screws compress the washer too much and can cause water to pool. Under-tightened screws will not hold panels securely and can cause premature wear of fasteners and panels.

During the installation, screws must be straight and tight to perform as intended. Fasteners that are not installed straight do not form a proper seal. And even when they are straight, over-tightening the screw compresses the washer too much, forms “dimples” in the metal panel and causes water pooling that can then infiltrate the attic.

Under-tightened screws won’t hold the roof panel securely and can cause premature wear of both the fastener and panel.

4. Inadequate Onsite Storage Arrangements

Roofing materials should be delivered in a particular sequence, close to the time roofers will need them. The longer roofing materials, such as panels, are stored on site, the more prone they will be to damage from the elements or construction-site mishaps.

Improper storage of roofing panels at the jobsite can lead to damaged and corrosion.

Workers should pay attention to where and how materials are stored. Are they out of the way of vehicles? Are they on a flat surface? Are they elevated on one end to allow for drainage of rainwater?

Standing water, especially on unpainted panels, can cause wet storage stains or what is known as “white rust.” Sand, dirt and debris can also damage metal panels, causing permanent stains before they are ever installed on a roof.

5. Delays Due to Worker Injury

Safety is crucial on any jobsite but especially when installing a metal roof. Injury and accident prevention should be the primary duty of crew chiefs and workers alike. Accidents can not only send workers to the hospital, they can affect scheduling and job productivity as well.

“Medical bills, downtime, and loss of skilled laborers for extended periods of recovery can take place,” Hope says. “It is the responsibility of every individual to properly protect themselves from day to day.”

Proper safety equipment is essential. Gloves and Kevlar sleeves can help roofers protect themselves from cuts.

Falls are the most common potential metal roofing injury. Workers should use harnesses when on the roof and in any other fall-risk situations. Someone on the crew also needs to maintain the condition of the safety equipment. “Nicks in the harness can jeopardize your entire fall system,” Hope says.

Cuts caused by the sharp edges of the metal panels are also a hazard. Gloves and Kevlar cut sleeves can help roofers protect themselves.

Less common threats include electrocution and burns. Electricity, whether from a live current or lightning, can travel through the metal. Rubber shoes and gloves can protect roofers from potentially fatal shocks. Burns are less common, but in hot climates, the sun can heat metal enough to cause an injury. Workers can protect themselves with gloves and protective clothing.

Taking care to address these five common metal roofing installation issues can result in a smoother, more effective process, fewer problems and more satisfied clients.

About the author: Jared Pearce is the technical services manager at Gulf Coast Supply & Manufacturing. The son of a general contractor, Pearce has been around the construction industry his whole life. He is also a native Floridian and a Coast Guard veteran. Gulf Coast Supply has been a trusted choice for metal roof products throughout the Southeast for more than two decades. Through its Contractor’s Advantage program, Gulf Coast offers both classroom and hands-on seminars to help fill the industry’s need for qualified roofers. For more information, visit www.GulfCoastSupply.com.

How Can the H-2B Classification Help Contractors Find Good Workers?

Nearly all businesses require employees to operate, and all successful businesses require that those employees be competent and capable. One issue facing contractors is the inability to find well-qualified and competent workers. Another issue facing contractors is the shortage of workers available to keep up with increased building demands in the United States. The H-2B classification can help contractors address these issues by expanding the pool of potential workers.

What Is the H-2B Classification?

The H-2B classification was created in order to facilitate the hiring of foreign workers to fill temporary needs with U.S. businesses. For the H-2B classification, it must be established that (1) there are not sufficient U.S. workers who are qualified and available to perform the temporary services or labor for the employer; (2) that the employment of foreign workers will not affect the wages and working conditions of similarly employed U.S. workers; and (3) that a temporary need exists for the employer.

The H-2B program has two components with two different government agencies. The first component deals with the U.S. Department of Labor (DOL) and the second component deals with the U.S. Citizenship and Immigration Services (USCIS). Each agency oversees a different aspect of the H-2B program. The DOL focuses on the labor market, and is tasked with determining that:

  1. There are not sufficient U.S. workers who are qualified and who will be available to perform the temporary services or labor for which an employer desires to hire foreign workers.
  2. The employment of H-2B workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.

At the end of the day, the DOL wants to make sure that the foreign worker is not taking a job from an American or affecting the wage market for American workers. The USCIS component of the H-2B program focuses on the temporary need of the employer and the foreign worker’s qualifications. The USCIS component is the last part of the process and is the final authority on whether the H-2B classification will be granted to the foreign worker.

What Is a Temporary Need?

A critical element of the H-2B analysis focuses on the temporary need of the employer. There are four types of needs for H-2B classification purposes. They are (1) one-time occurrence; (2) seasonal need; (3) peak-load need; and (4) intermittent need. A one-time occurrence is as the name suggests; it is an event that occurs one time which requires the need for additional workers and after this event concludes, so does the need for the workers. A seasonal need exists where the employment is traditionally tied to a season of the year by an event or pattern and is of a recurring nature. Examples include the hiring of workers during the Christmas shopping season by UPS and FedEx due to an increase in holiday shipping demands, and when the Disney theme parks require additional workers in the summertime because of an increase in visitors after schools are no longer in session. Both these needs are seasonal and recur every year. A peak-load need exists where the employer normally employs permanent workers to perform a service or labor and an increased seasonal or short-term demand requires additional workers who will not become part of the employer’s regular operations. The key with a peak-load need is that it is not recurring. An intermittent need exists where an employer does not employ permanent or full-time workers to perform services or labor and occasionally needs temporary workers for short periods of time.

What Is the Process?

The H-2B classification process starts with the DOL and ends with USCIS. The first step is to file an Application for Prevailing Wage Determination with the DOL. This application outlines the proposed employment and results in a Prevailing Wage Determination (PWD) issued by DOL, which sets the minimum amount that can be paid to the foreign worker. After the employer received the PWD from the DOL, the employer can begin the recruitment process. The recruitment process includes posting a job order with a state agency and running two print advertisements as well as interviewing candidates that apply for the position. After recruitment is completed, the employer submits an Application for Temporary Employment Certification with the DOL along with a completed recruitment report. Once a final determination is made by the DOL and the application is certified, the process then shifts to USCIS. The final step is to file an I-129, Petition for a Nonimmigrant Worker. If the foreign worker is outside the United States, he or she will also need to apply for an H-2B visa at a U.S. Embassy or Consulate.

H-2B “Cap” and the Period of Stay

For the H-2B classification, there is a statutory limit on the total number of foreign nationals who may be granted H-2B status or issued an H-2B visa. This is commonly referred to as the H-2B “cap” and is currently set at 66,000. Unlike other statutory limitations, the H-2B cap is split between two parts of the year, with 33,000 allocated for the first half of the U.S. government fiscal year (October 1 to March 31) and 33,000 allocated for the second half of the U.S. government fiscal year (April 1 to September 30). If any of the first 33,000 are not used by the beginning of the second half of the fiscal year, those unused numbers will be reallocated to the second half of the fiscal year. While cases based on a one-time occurrence can be approved for up to 3 years, all other H-2B classifications will be approved for, at most, 10 months. The H-2B classification can be renewed, in increments of up to one year, and the foreign worker can stay in the United States for a maximum for 3 years. After 3 years, the foreign worker must stay outside the United States for an uninterrupted period of 3 months before seeking readmission under the H-2B classification.

Pros and Cons of H-2B Classification

For contractors, the H-2B classification can provide them temporary workers when needed for short periods of time. This can be especially important when there is difficulty finding quality workers in the United States. But as with any immigration classification, there are some pros and cons to consider when it comes to the H-2B classification.

Pros

  • While there is a cap on the number of H-2B statuses granted/visas issued, there is no lottery system in place like the H-1B. This means that there are usually H-2Bs available if you file at the right time.
  • There are no special qualifications, educational or otherwise, required for the H-2B classification, unlike some other immigration classifications. The foreign worker must simply meet the requirements for the position.
  • Premium processing from USCIS, which guarantees a response in 15 days after filing, is available.
  • The H-2B classification is renewable, in increments up to 1 year, for a total stay in the United States of 3 years. After the 3-year limit is reached, the foreign worker only needs to leave the United States for 3 months before he or she is eligible for H-2B classification again.

Cons

  • The H-2B classification essentially requires the foreign workers to be employees of the company by requiring an employee-employer relationship for the proposed employment. Independent contractors would not qualify.
  • From start to finish, it takes about 3 to 4 months while utilizing USCIS’s premium processing service, or 4 to 7 months without the premium processing service. If a worker is needed quickly, the H-2B classification may not be the right choice.
  • Only individuals from certain countries are eligible for the H-2B classification.
  • The minimum wage that must be paid to the H-2B recipient is fixed by the DOL and may be higher than what the employer is willing to pay or normally pays similar workers.
  • The foreign worker needs to have legal status in the United States or reside outside the United States to qualify. Illegal immigrants do not qualify for the H-2B classification.

The H-2B classification may help contractors address some of their labor needs. Contact an experienced immigration attorney to see whether this is a good fit for your company.

About the author: Paul Messina is an attorney at Cotney Construction Law who focuses his practice on immigration law. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for FRSA, RT3, NWIR, TARC, WSRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.