Miller Time: Bonds, Sovereign Immunity, and Public Projects

Getting paid can sometimes be the hardest part of the job for a subcontractor. Typically, a subcontractor can claim a lien on the property where the work was performed or sue the prime contractor for breach of contract. However, where the “owner” is the government, getting paid can be a little trickier. Public construction projects consist of projects where the services and materials provided are used to make improvements to government owned property.

The government, whether it be the federal, state, or municipal government, has “sovereign immunity.” Sovereign immunity essentially means that the government cannot be sued in civil court. It is common, however, for legislatures to enact partial waivers of sovereign immunity by statute. The abiding test for whether the government has sovereign immunity rests in whether the wrongdoing arose in an operational or planning function. Decisions relating to policy making, planning, or judgmental government functions are usually not subject to these waivers — these are planning functions. Conversely, government entities are not immune from liability for their wrongdoing in operational functions, which are usually performed by private entities.

So, what does this mean? You cannot sue the government or put a lien on a government-owned facility in the case of non-payment. However, the Contracts Dispute Act waives government immunity in contract disputes with prime contractors, but not for subcontractors. This severely limits the ways in which subcontractors can enforce payment provisions in their contracts for public projects. There is legislation that can help subcontractors should they encounter payment issues involving government property: The Miller Act.

The Miller Act

The Miller Act is a law that requires every contractor bidding on a federal project to post a performance bond and a payment bond covering all labor and material. This is required on contracts exceeding $100,000 on any building or property in the United States. The performance bond is required to protect the government in the event that the contractor fails to perform its scope of work. The payment bond protects labor, suppliers, and materials. Payment bonds also cover subcontractors and suppliers contracted by subcontractors, called second-tier claimants. In addition to bonds required by The Miller Act, federal acquisition regulations could require additional protection or bonds to contracts between $25,000 and $100,000. It should be noted that since projects under $100,000 may not require a bond, the subcontractor should proceed with caution since they do not have the security of a bond or a lien in the case of non-payment by the prime contractor.

In addition to the federal Miller Act, all states and the District of Columbia have passed “Little Miller Acts,” statutes based upon the federal Miller Act that require prime contractors on state construction projects to post bonds guaranteeing the performance of their contractual duties and the payment to their subcontractors and material suppliers. Like the federal Miller Act, Little Miller Acts require the posting of both performance and payment bonds.

Little Miller payment bonds provide an alternative source of payment to the subcontractors and material suppliers who worked on the job. If the claimant did not have a direct contractual relationship with the prime contractor, the claimant is typically required to give some form of notice to the prime contractor within a specified time after the completion of the work to preserve the right to make a claim against the payment bond. The purpose of this requirement is to give the prime contractor notice that you have been hired by the subcontractor and expect to be paid. Across state lines, the notice requirement and the entitlement to a copy of the bond varies.

In sum, although you cannot lien public property to secure payment for work completed on a public project, there are other methods available. The requirement that prime contractors secure both performance and payment bonds ensures that all parties to the project will be satisfied at the conclusion of the project. It is best practice for any subcontractor working on a public project to become familiar with the requirements under the host state’s Little Miller Act, and to request a copy of the payment bond if possible and timely serve its Notice to Contractor, if required. This is the best way to ensure preservation and enforcement of a bond claim in the event of non-payment.

About the authors: David Keel is an Attorney at Cotney Construction Law who represents clients in construction law. Richard Anderson is Law Clerk with direct experience working in the construction industry. Cotney Construction Law is an advocate for the roofing industry and serves as General Counsel for NRCA and several other roofing associations. For more information, visit www.cotneycl.com.

Authors’ 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.

Are COVID-19 Liability Waivers Enforceable?

The novel coronavirus, or COVID-19, has fundamentally changed the way Americans do business. Because of the pandemic, business owners now face the dilemma of either trying to keep up with constantly changing orders, rules, and guidelines to keep their doors open, or staying closed and possibly losing their businesses forever.

In this ever-changing world, businesses, especially those providing essential services, need to be proactive to limit the risks associated with the pandemic. This requires businesses to not only protect their employees and customers; it also requires them to protect their bottom line. In addition to complying with all applicable government rules and regulations, many companies are seeking to limit their potential exposure to COVID-19 related claims by seeking liability waivers from their customers.

A liability waiver is a contract between a business and a customer that educates the customer about the risks he or she is undertaking when participating in an activity and seeks to limit the business’s liability for such risks. When customers sign a liability waiver, they acknowledge that they understand the risks associated with the activity and agree to accept them. The customer also typically agrees to waive or limit the right to sue the business for injuries sustained as a result of the activity. Most people have been presented with a liability waiver at some point or another before participating in a potentially risky activity, such as sports, scuba diving, skydiving, or outdoor adventures. However, due to the risks associated with COVID-19, these waivers are now becoming increasingly prevalent for more common and traditionally less risky activities, like dining in a restaurant, shopping in a store, or simply entering business establishments as they begin to reopen.

At this point, it is too soon to tell how much weight these waivers will carry in court. Ultimately, the effectiveness of the waivers may vary from state to state. For example, Virginia and Montana do not allow any liability waivers. New York law provides that a liability waiver is only enforceable so long as it does not violate the public’s interest, it is clear and coherent, and the intention of the parties is unambiguous. (See Gross v. Sweet, New York 1979.) Illinois courts strictly construe liability waivers against the party that drafted them (i.e., the business). (See Harris v. Walker, Illinois 1988, which held “exculpatory clauses are not favored and must be strictly construed against the benefitting party, particularly one who drafted the release.”) And Connecticut courts rarely uphold liability waivers in personal injury claims. (See Hanks v. Powder Ridge Rest. Corp., Connecticut 2005, where a liability waiver was found unenforceable for snow tubers who had no ability or right to control the activity.)

While there may not be a common set of rules for liability waivers among the states, there are some basic legal principles that are almost universally accepted. One is that waivers that limit actions arising from intentional or grossly negligent conduct are unenforceable. (See Mero v. City Segway Tours of Washington DC, D.C. 2013: “Because District of Columbia law prohibits release from liability for grossly negligent, reckless, or intentional acts, the Agreement will not be held to indemnify defendant with respect to such conduct.”) This means parties cannot immunize themselves from claims where they have acted intentionally or with gross negligence. (See Restatement [Second] of Contracts § 195 [1981]: “A term exempting a party from tort liability for harm caused intentionally or recklessly is unenforceable on grounds of public policy.”) Although states and jurisdictions may define gross negligence and intentional acts differently, the overarching premise is its intended conduct, reckless activity or, at the very least, something more egregious than simply failing to act with ordinary care. Depending on how the laws are interpreted and applied to the facts of a particular situation, there is certainly a possibility that exposing someone to a known risk of contracting coronavirus could be considered intentional or grossly negligent, thereby negating the effect of any liability waiver that may have been signed.

Additionally, courts generally will not enforce liability waivers that are considered to be contrary to public policy. In other words, most jurisdictions will not enforce a waiver that involves a matter of great interest to the public. Given the contagiousness of the disease and its potentially deadly impact, it is certainly possible that courts will find that COVID-19 claim waivers are against the public’s interest. However, a counterargument could also be made that these waivers are essential and mandated by public policy because without them, coronavirus-related personal injury or wrongful death claims could potentially force businesses into bankruptcy.

The federal government is currently considering legislation that will create a safe harbor for businesses and nonprofit organizations that follow federal and state guidelines for COVID-19 to protect them against lawsuits. Perhaps they should also consider a COVID-19 compensation fund, similar to the one created by Congress following the 9/11 attacks, to compensate victims and insulate businesses from liability. It is unknown whether any such legislation will pass and even if it does, what protections it will provide — particularly if it requires compliance with the ever-changing and often confusing federal and state guidelines to be effective. Unless or until there is clear legislation and legal precedent governing COVID-19 liability for businesses, business owners may want to seriously consider obtaining liability waivers from their customers to create an additional legal hurdle to bringing a claim or, at the very least, to try and mitigate their liability by providing proof that the customers signing the waivers acknowledged the risk associated with the activities they voluntarily agreed to participate in.

About the authors: Brian Oblow is a Partner at Cotney Construction Law who represents clients in all aspects of construction law and arbitration. 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.

Safety Obligations Under the OSH Act Can Extend to Non-Employees and Other Trades

The nature of roofing (particularly re-roofing) frequently involves the presence of non-employees on or around active construction sites. This is true in both the residential and commercial contexts. However, the risk increases significantly on commercial projects, such as retail and mixed-use projects, where many parties can be present, including the property owners’ customers and employees, as well as other trades working at the project simultaneously.

As such, it is essential that roofing contractors understand the scope of their obligations to non-employees under the Occupational Safety and Health Act of 1970 (OSH Act). While accidents and injuries can certainly trigger an investigation by OSHA, employers are frequently charged with violations of the OSH Act for merely failing to implement appropriate procedures. Not to be taken lightly, OSHA citations carry significant consequences, including penalties of up to $134,937 per violation, as well as creating a stigma against the company and loss of future opportunities. Moreover, company owners may not always be free to “walk away” from these consequences by closing the business (a common misbelief in the industry).

In the OSH Act, Congress authorized the Secretary of Labor to develop safety and health standards (OSHA regulations). One of the most important of these standards to contractors, arguably, is 29 CFR 1910.12, which provides: “Each employer shall protect the employment and places of employment of each of his employees engaged in construction work.” [Emphasis added.] This provision, like OSHA’s general duty clause, seems to imply that OSHA-imposed obligations extend only to an employer’s own employees. However, this is frequently not the case.

For many decades, the phrase “his employees” has been a major point of contention because OSHA has frequently penalized employers for hazards which did not affect the employers’ own employees. While early court decisions initially rejected OSHA’s imposition of liability in these circumstances, the tide eventually shifted, and now the opposite is true. Today, most courts will impose liability under OSHA’s “Multi-Employer Citation Policy” where the contractor “could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.” This is true even where the contractor’s own employees were completely unaffected, or even absent when the hazard occurred.

While the borders of OSHA’s policy are unclear and still developing, contractors should at least suspect they may be held responsible for the safety violations at a jobsite if they either: (1) created the hazard; or (2) exercised some degree of control over the subject worksite. With that in mind, roofing contractors can address this risk preemptively by starting with a plan to mitigate hazards and potential liability on their jobsites.

Identifying Risk

One method of doing so is by creating a Jobsite Hazard Analysis (JHA). According to OSHA, a JHA “is a technique that focuses on job tasks as a way to identify hazards before they occur.” By identifying risks, such as exposure of the public and other trades to an active construction site, roofing contractors can implement effective measures to mitigate known hazards.

While planning requirements will vary by jobsite, most roofing contractors’ JHA should address the following questions on this topic:

  • Will non-employees be present at the worksite during active construction? Could they gain access without the company’s knowledge or consent?
  • Can measures be taken to reduce or eliminate access to the worksite by non-employees?
  • What types of hazards could non-employees be exposed to? (e.g.,falling debris)
  • What steps will the company take to reduce or eliminate risks to non-employees?

In addition to addressing these risks in company policies, such as JHAs and a safety manual, it is also prudent to include provisions in the company’s contract which seek to limit exposure of non-employees to hazards. For example, the roofing contractor could include a provision in the contract which forbids the property owner’s employees from using certain entrances to the building during specific phases of construction. Roofing contractors may also seek indemnification from owners for claims of third parties based upon third parties’ failure to comply with contractual requirements. 

Under any circumstances, roofing contractors should take a preemptive approach to hazards, understanding the adage, “an ounce of prevention is worth a pound of cure,” is especially true in their industry. The first step in this process is assessing and appreciating the risks that safety hazards present. The second is implementing proactive safety policies which seek to eliminate or reduce those risks.

About the author: Travis S. McConnell is a construction law attorney with Cotney Construction Law, LLP. McConnell’s legal practice focuses on all aspects of construction law. He works extensively on matters relating to OSHA defense, which includes the management and development of safety and health strategies for construction contractors across the United States. McConnell’s OSHA practice concentrates on litigation and the appeals of citations involving catastrophic construction related accidents. He can be contacted by email at tmcconnell@CotneyCL.com.

How Employers Should Respond to COVID-19

As COVID-19 (coronavirus disease) continues to affect our daily lives, it is crucial for employers to be aware of the measures the government is taking to reduce infection, how those measures affect your business, and the protocols your business needs to implement to ensure you are complying with what is required. Because the national response is changing daily, it is important to remain up-to-date on new laws, regulations, and government mandates as they rapidly begin taking effect.

Employer Screening and Examinations

In response to the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) referred employers to an advisory opinion the EEOC published in 2009 amidst the H1N1 (“swine flu”) outbreak. In its 2009 advisory opinion, the EEOC implemented a temporary waiver of certain provisions of the Americans with Disabilities Act (ADA), taking the position that illnesses related to global pandemics are dissimilar to the disabilities that the ADA was designed to protect, and calling for more flexibility in allowing employers to conduct medical examinations and screenings in the workplace provided the employer reasonably believes such action is necessary to address a direct threat to the health or safety of the workplace.

The EEOC subsequently announced that the spread of COVID-19 qualifies as a “direct threat” allowing employers to conduct employee examinations and screenings to ensure the health and safety of others in the workplace. During these examinations, an employer may ask an employee if he or she is experiencing any COVID-19 related symptoms or has been in contact with anyone who has been diagnosed with COVID-19 or is experiencing COVID-19 related symptoms. The employer may also inquire about the employee’s recent travel history or the reason for any recent work absence. The EEOC has also authorized employers to take employee’s temperatures to determine if their employee has a fever, which is a symptom of COVID-19.

Ultimately, any medical information employers receive from an employee during one of these screenings, examinations, or otherwise, must remain confidential. If an employee is confirmed to have COVID-19, employers should inform other employees about their potential exposure to the virus, but the identity of the infected employee must remain confidential to the extent possible.

With that being said, employers must be careful not to violate any state, federal, or local laws when implementing new protocols designed to prevent the spread of COVID-19. For instance, employers should implement all such protocols uniformly amongst all employees to avoid violating anti-discrimination laws (e.g., if an employer chooses to send an employee home for exhibiting COVID-19 symptoms, it should also send home all other employees exhibiting such symptoms). Further, any questions asked during employee screenings must be related solely to the possibility of workplace exposure to COVID-19, and must avoid inquiries into unrelated health conditions or disabilities.

Workplace Safety Standards

The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to keep their workplaces free from recognized hazards that are causing, or are likely to cause, death or serious physical harm. While it remains to be seen whether OSHA considers COVID-19 to be a “recognized hazard,” employers would do well to treat COVID-19 as such, and take reasonable steps to mitigate or eliminate the hazard. Accordingly, employers must be cognizant of potential health risks posed by certain employees and implement protocols for employees to remain safe during a potential outbreak. Additionally, COVID-19 may be considered a recordable illness pursuant to 29 C.F.R. 1904 – Subpart C. For example, an outbreak of an infectious disease or similar illness occurring at a medical facility may be considered a recordable illness, under the Code of Federal Regulations, if such an outbreak is an illness resulting from events or exposures occurring in the work environment. Please note, however, that the Bloodborne Pathogens standard found in 29 C.F.R. 1910.1030, which requires employers take certain measures during the outbreak of a bloodborne pathogen, does not apply in the response to COVID-19.

Employers may visit OSHA’s website (https://www.osha.gov/SLTC/covid-19/standards.html), which provides an employer’s guide to COVID-19 for more general guidelines and tips for maintaining a safe workforce during this outbreak.

Additionally, the Center for Disease Control (CDC) has issued guidance to employers regarding when to send employees home and/or prohibit them from returning to work for COVID-19 related reasons. While the CDC guidelines are discretionary for many employers, they represent valuable resources and standards for employers to utilize amidst this unprecedented pandemic.

Employee Pay and Benefits

The recently enacted Families First Coronavirus Response Act (FFCRA) includes two significant laws of which employers should be aware: the Emergency Paid Sick Leave Act and the Emergency Family Medical Leave Expansion Act.

Emergency Paid Sick Leave Act: Under the Emergency Paid Sick Leave Act, private sector employers with fewer than 500 employees are generally required to provide employees paid sick leave if the employee is unable to work because the employee is:

  1. Subject to a government quarantine or isolation order;
  2. Following the advice of a healthcare professional to self-quarantine;
  3. Experiencing symptoms related to COVID-19 and is seeking a medical diagnosis;
  4. Caring for an individual subject to a government order set forth in (1) above, or who has been advised by a healthcare professional to self-quarantine as set forth in (2) above;
  5. Caring for a child whose school or childcare is closed due to COVID-19 precautions; or
  6. Is experiencing “any other substantially similar condition specified by the secretary of Health and Human Services in consultation with the secretary of the treasury and the secretary of labor.” (While the Secretary of Health and Human Services has not yet specified conditions it considers “substantially similar,” the FFCRA empowers the Secretary to do so in the near future.)

The amount of emergency paid sick leave you must pay an employee depends on the employee’s reason for leave. If the employee is entitled to leave under reasons 1 through 3 above, the employee must receive his or her regular pay rate, capped at $511 per day (and $5,110 in the aggregate). On the other hand, if the employee is entitled to leave under reasons 4 through 6 above, you are only required to pay the employee two-thirds of his or her regular rate of pay, capped at $200 per day (or $2,000 in the aggregate).

Full-time employees are entitled to up to 80 hours of emergency paid sick leave, while part-time employees are entitled to the equivalent of the average hours they work during a two-week period.

Employers may not require an employee use any accrued sick leave or paid time off in lieu of, or before, using the paid sick leave to which an employee is entitled under the Emergency Paid Sick Leave Act. Employers must also post in a “conspicuous” workplace location a notice containing information regarding the requirements of the Emergency Paid Sick Leave Act. Copies of the notice are available on the DOL’s website.

Emergency Family Medical Leave Expansion Act: The Emergency Family Medical Leave Expansion Act (EFMLEA) amends the pre-existing Family Medical Leave Act (FMLA) to add one new qualifying reason for job-protected leave: when employees are unable to work (or telework) because they must care for their child whose school or childcare is closed due to COVID-19 precautions. Generally, this new basis for family leave applies to all private employers with fewer than 500 employees and to any employee who has worked for the employer for at least 30 days.

An employee receiving emergency family leave under this new law is entitled to up to 12 weeks of job-protected leave with continuing group health insurance coverage. The first two weeks of emergency family leave is unpaid, after which the employer must pay the employee two-thirds of the employee’s regular pay rate, capped at $200 per day (or $10,000 in the aggregate), for any additional emergency family leave the employee takes.The employee’s emergency family leave will end when the employee’s need for leave ends or when the employee has exhausted his or her 12 weeks of leave. When the employee’s emergency family leave ends, the employer generally must reinstate the employee to either his or her same position or an equivalent position.

Small Business Exemption: Companies with fewer than 50 employees may be exempt from the requirement to provide paid leave to employees who seek leave to care for a child whose school or childcare is closed due to COVID-19 precautions. While this represents a limited exemption to the Emergency Paid Sick Leave Act (small businesses must still provide paid sick leave for the remaining five qualifying reasons), it represents a complete exemption to the Emergency Family Medical Leave Expansion Act. To qualify for the small business exemption, an authorized officer of the company must determine that one of the following is true about the employee’s leave request: (1) payment of leave will cause the business’ expenses/liabilities to exceed available revenues; (2) the employee requesting leave has specialized skills, knowledge, or responsibilities, such that their absence would entail substantial risk to business operations; or (3) there are insufficient workers available to perform the work of the employee requesting leave and the work is essential to operations.

Mass Layoffs

If your business is covered by the Worker Adjustment and Retraining Notification (WARN) Act, you are generally required to provide affected employees at least 60 days’ notice before a mass layoff or plant closure as defined by the Act. However, the normal 60 days’ notice may not apply if the mass layoff or closure is due to the effects of COVID-19 if that reason meets the “unforeseeable business circumstances” exception to the WARN Act. However, even where the unforeseeable business circumstances exception applies, a covered business is still required to give its employees as much notice as is reasonably practicable. Employers should also be mindful of potential state laws similar to the Federal WARN Act, and ensure that any mass layoff or closure complies with any such analogous state law.

About the authors: Benjamin Briggs is a Partner at Cotney Construction Law who represents clients in all aspects of labor and employment law. Elliot Haney is an Attorney at Cotney Construction Law who practices in all areas of construction 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.

Creating a Company That Embraces Diversity and Inclusion

Given the ongoing labor shortage in the roofing industry as well as the national conversation recently sparked by the #Metoo movement concerning sexual harassment and discrimination in the workplace, never before has the topic of embracing and fostering diversity in the workplace been more important than now. Although there certainly is no one-size-fits-all quick-fix solution to the problem, below are three steps companies can take to help foster a workplace environment that embraces diversity through creating and maintaining a culture of inclusiveness and intolerance of harassment and discrimination of any kind.

Written Policies and Procedures

The first step a company should take to embrace diversity in the workplace is to make sure it has the commitment to diversity, non-discrimination, and non-harassment down in writing for all employees to read and understand. This includes having a written policy, at a minimum in the employee handbook, that clearly states that the company does not discriminate on the basis of any protected class or category and prohibits all employees from discriminating against or harassing any individuals on the basis of their membership in any protected class or otherwise.

The policy should also provide clear, robust reporting procedures for employees to know how and to whom they should report any claims of discrimination or harassment they experience or witness. These reporting policies should not be limited to requiring employees to report claims only to their immediate supervisor, but should instead provide multiple avenues for reporting to upper management and/or HR in case the employee’s immediate supervisor is the accused harasser.

The company’s handbook policy should also state that all complaints of discrimination or harassment will be promptly and thoroughly investigated by an impartial member of management or HR and will be handled as confidentially as possible.

The handbook should also contain an express provision that prohibits retaliation against anyone who makes a discrimination or harassment claim or who provides verification or support for a claim made by someone else. 

Additionally, the policy should spell out the potential consequences for any discriminatory or harassing behavior, including the possibility of disciplinary action up to and including termination.

Finally, the company’s written anti-discrimination policies should make clear that they apply to everyone in the company including all levels of management and that everyone is expected to comply with them and to uphold the values of the company by reporting any discriminatory or harassing behavior they experience or witness.

Education and Training

The next component needed to create a workplace environment that embraces diversity and inclusion is for the company to educate and provide comprehensive anti-discrimination and anti-harassment training — preferably live and in person — for all employees, but especially for all management-level employees, on the policies and procedures outlined above.

The company’s training should clearly spell out what is and is not considered harassment and who can be a harasser (managers, co-workers, customers, vendors, individuals of the same sex as the victim, etc.).

Because actions taken (or not taken) by managers and supervisors are imparted to the company, all managers should be thoroughly trained and knowledgeable about the company’s reporting procedures, including how to escalate complaints they may receive up the chain to HR and/or upper management, how to recognize, stop, and address harassing conduct when they see it happening, and how to prevent further harassing behavior from occurring while an investigation is ongoing in such a way that does not punish the complaining employee or prematurely punish the accused harasser before the investigation is completed.

Executive Leadership, Buy-in, and Accountability

Finally, embracing diversity and building a workplace culture of inclusiveness requires executive buy-in, accountability, and support from the top down so that managers feel empowered to enforce the company’s policies and employees trust that they can speak up without fear of reprisal.

Company executives should outwardly champion the company’s non-discrimination and harassment policies, openly and frequently expressing the company’s commitment to diversity and to providing a workplace free of discrimination, harassment, and retaliation.

Company leaders should also hold managers and employees accountable by regularly checking in to make sure the company’s policies are being enforced and complied with. This includes ensuring all complaints are being reported up the chain, investigations are being promptly, fairly, and confidentially conducted, and appropriate discipline that actually ends the harassing behavior is being imposed for any established violations of the company’s policies.

Company management should also avoid downplaying or ignoring any bad behavior that may occur or that has occurred in the company’s past and should assure employees that the company takes these issues seriously, does not tolerate discrimination or harassment of any kind, and has mechanisms in place to correct any such behaviors that do not reflect the company’s values.

Although a company that implements the steps above may not see immediate changes in the diversity of its workforce or applicant pool, these steps will go a long way towards building a reputation within the company, the community, and the roofing industry that the company fully embraces and promotes diversity, which should eventually lead to a more diverse and productive workplace environment for the company down the road.

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.

How Employers Should Respond to COVID-19

As COVID-19 (coronavirus disease) continues to affect our daily lives, and is now officially considered a pandemic by the World Health Organization (WHO) and the Center for Disease Control (CDC), it is crucial for employers to be aware of the steps the government is taking to reduce infection, how those steps affect your business, and the protocols your business needs to implement to ensure you are complying with what is required under these unusual circumstances. Because the national response is changing daily, it is important to remain up-to-date on new laws, regulations, and government mandates that are likely to begin taking effect rapidly.

Employer Screening and Examinations

To a certain extent, the COVID-19 pandemic is largely unchartered territory. However, there are certain laws, regulations, and government advisory statements that may help an employer deal with these complex issues.

In early March 2020, the Equal Employment Opportunity Commission (EEOC) released a statement on the COVID-19 pandemic, referring employers to an advisory opinion the EEOC previously published in 2009 amidst the H1N1 (“swine flu”) outbreak. In its 2009 advisory opinion, the EEOC implemented a temporary waiver of certain provisions of the Americans with Disabilities Act (ADA) that would otherwise prohibit an employer from taking action based on an employee’s medical conditions. In taking the position that illnesses related to global pandemics are dissimilar to the disabilities that the ADA was designed to protect, the EEOC calls for more flexibility in allowing employers to conduct medical examinations and screenings in the workplace if doing so is “consistent with a business necessity” or if the employer has “a reasonable belief the employee poses a direct threat to the health or safety” of others and the workplace.

For example, an employer may institute screenings for employees who exhibit flu-like symptoms in the workplace, but may not make such inquiries to employees who work remotely or do not come into contact with other employees as part of their job description.

Relying on the CDC’s recommendations for employers amidst the COVID-19 pandemic, employers are able to screen and examine employees to ensure the health and safety of others in the workplace. The CDC suggests that employees should be screened if (a) they are exhibiting flu-like symptoms such as fever, dry cough, shortness of breath, etc.; (b) the employee recently returned from travel abroad; or (c) the employee is known to have been exposed to a person who is a confirmed carrier of the virus. During these examinations, an employer may ask an employee if he or she is experiencing any flu-related symptoms, what symptoms the employee is experiencing, whether the employee has visited a doctor or has been tested for COVID-19, the employee’s recent travel history, and the employee’s reasoning for any recent work absence.

The CDC and U.S. Department of Labor (DOL) advise that employees who exhibit flu-related symptoms can and should be sent home immediately and prohibited from returning to work until they are symptom-free for at least 24 hours. If an employee has traveled to a country designated a Level 3 travel risk area (currently China, Iran, South Korea, and much of Europe), it is recommended that the employee be sent home immediately and be required to remain away from the workplace for 14 days. Further, if an employee is confirmed to have COVID-19, it is suggested that all employees who came in contact with that employee are sent home and a professional cleaning company is hired to do a full cleaning of the affected workspace.

Ultimately, any medical information employers received from an employee during one of these screenings, examinations, or otherwise, must remain confidential. If an employee is confirmed to have COVID-19, employers should inform other employees about their potential exposure to the virus, but the identity of the infected employee must remain confidential to the extent possible.

With all that being said, employers must be careful not to violate any state, federal, or local laws when implementing new protocols designed to prevent the spread of COVID-19. For instance, employers should avoid taking adverse employment actions (termination, demotion, etc.) against an employee who misses work or is sent home due to the outbreak of COVID-19. Additionally, employers must implement all such protocols uniformly and equally amongst all employees to avoid violating anti-discrimination laws. For example, if an employer chooses to send an employee home for exhibiting flu-like symptoms, it should also send home all other employees exhibiting flu-like symptoms.

Workplace Safety Standards

The General Duty Clause of the Occupational Safety and Health Act (OSHA) requires employers to keep their workplaces free from recognized hazards that are causing or are likely to cause death or serious physical harm. While it remains to be seen whether COVID-19 is considered a “recognized hazard” pursuant to 29 U.S.C. 654(a)(1), OSHA standards tend to rely heavily on CDC guidelines, which could consider a pandemic the scale of COVID-19 as such a hazard. Accordingly, employers must be cognizant of potential health risks posed by certain employees and implement protocols for employees to remain safe during a potential outbreak. Additionally, COVID-19 may be considered a recordable illness pursuant to 29 C.F.R. 1904 – Subpart C. For example, an outbreak of an infectious disease or similar illness occurring at a medical facility may be considered a recordable illness, under the Code of Federal Regulations, if such an outbreak is an illness resulting from events or exposures occurring in the work environment. Please note, however, that the Bloodborne Pathogens standard found in 29 C.F.R. 1910.1030, which requires employers take certain measures during the outbreak of a bloodborne pathogen, does not apply in the response to COVID-19.

Please visit OSHA’s website (https://www.osha.gov/SLTC/covid-19/standards.html), which has an employer’s guide to COVID-19, for more general guidelines and tips for maintaining a safe workforce during this outbreak.

Employee Pay and Benefits

In the coming weeks, as more employees either choose to work from home or are required to do so, employers will face challenges regarding employee pay and conditions of employment. Generally speaking, unless otherwise stated in an employee’s contract, employers are not required to provide paid leave or paid time off to employees who are unable to work due to an outbreak of COVID-19. Additionally, employers may require employees forced to take time off during an outbreak to use any accrued paid time off (sick and/or vacation days) during such an outbreak. However, employees must be properly compensated for any work they perform remotely or off-site. Minimum wage and overtime laws remain effective during a pandemic.

If you employ union workers and are requiring such employees stay home from work, to the extent possible, you must bargain in good faith with such employees prior to making any unilateral changes to their employment status or benefits. It is strongly advised that all union-employers familiarize themselves with their respective collective bargaining agreements prior to making any such changes.

If your business is a covered employer under the Family and Medical Leave Act (FMLA), an employee who contracts COVID-19 or needs to care for a spouse, child, or parent who has contracted the virus, may be eligible for up to 12 weeks of job-protected, unpaid leave and a continuation of his or her health insurance benefits during the time that he or she is unable to work because of the virus. Depending on the terms of your leave policy, the employee may choose to use accrued paid leave during his or her FMLA leave, or you may require the employee to do so. According to the DOL, the FMLA does not apply to leave taken by an employee merely for the purpose of avoiding exposure to COVID-19 or to care for a healthy dependent whose school or daycare is closed because of COVID-19. There is currently no federal law addressing private-sector employees who take off from work to care for healthy dependents.

However, in response to COVID-19, the United States House of Representatives recently passed a bill that, if enacted, would expand the scope of FMLA job-protected leave and would require employers to provide paid leave in certain circumstances. It is important for employers to monitor this bill (H.R. 6201) and respond accordingly if it passes. Further, employers should also be mindful that some states have previously enacted their own state family medical leave law, and employers must comply with those analogous state laws where applicable.

Mass Layoffs

If your business is covered by the Worker Adjustment and Retraining Notification (WARN) Act, you are generally required to provide affected employees at least 60-days’ notice before a mass layoff or plant closure as defined by the Act. However, the normal 60-days’ notice likely does not apply if the mass layoff or closure is due to the effects of COVID-19, as this would likely fall under the “unforeseeable business circumstances” exception to the WARN Act. However, even where the unforeseeable business circumstances exception applies, a covered business is required to give its employees as much notice as is reasonably practicable. Employers should also be mindful of potential state laws similar to the Federal WARN Act, and ensure that any mass layoff or closure complies with any such analogous state law.

About the authors: Benjamin Briggs is a Partner at Cotney Construction Law who represents clients in all aspects of labor and employment law. Elliot Haney is an Attorney at Cotney Construction Law who practices in all areas of construction 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.

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.

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.

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.

Three Key Questions About OSHA Inspections

OSHA will investigate a jobsite for a number of reasons. A representative from OSHA will show up if an employee has issued a complaint against you, if there is a recent fatality, or if there is an imminent threat they have identified. The dangers of fall-related injuries in the industry have been well documented, and this has prompted inspectors in your area to be on the lookout for roofers. Additionally, roofers are the easiest to cite due to the fact that roofing is a highly visible construction trade and an inspector does not have to use much effort to determine the likelihood of a dangerous situation that needs inspecting.

OSHA inspections can be stressful, but they can be less stressful if you know your rights and the proper procedures to follow during an inspection. Here are the answers to the most common questions I encounter when it comes to OSHA inspections.

Question #1: Do I have to comply, and what happens if I refuse OSHA access?

First and foremost, you need to know that OSHA has a legal right to inspect your jobsite. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of a city, state, or federal law enforcement agency needs a much more specific probable cause to enter a private citizen’s property. This is not the case with OSHA. When an active construction project is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause they need.

This is not to say that you and your site superintendent do not have the right to deny OSHA access to the project and demand that they get a warrant. The site superintendent has the option to consent to OSHA’s inspection or deny them access to the project. The superintendent is well within his or her rights to tell the inspector to get a warrant. However, if you tell OSHA to get a warrant, they most certainly will. Because of OSHA’s broad power to oversee safety within the United States, they can obtain a warrant from a judge or magistrate. Once OSHA obtains a warrant for a site inspection, their inspection can become much more invasive. This means that OSHA inspectors can get permission from a judge to examine documents, conduct extensive interviews, and also perform scientific tests on items such as air quality, presence of combustible material, or any other danger.

The bottom line is that it is rarely a good idea to tell an OSHA compliance officer to get a warrant. The reasoning behind this has to do with the scope of OSHA’s inspection rights under the Code of Federal Regulations (CFR). The CFR demands that OSHA’s inspection be “reasonable.” This essentially means that they are limited to inspect only the workers, equipment, and materials which are within “plain sight.” “Plain sight” is a doctrine borrowed from criminal law and the Fourth amendment, which says that a government agent may not sample or manipulate anything that is not within his or her reasonable line of sight. If an agent violates this doctrine, it is possible that all the information they obtained during the inspection may be suspect.

Question #2: What should I do during the inspection, and are there areas I can prevent OSHA from viewing?

When OSHA is on site, the superintendent should remain alert, aware, and advocate for his or her company. The superintendent has specific rights granted to them under the CFR, and they must use those rights in order to protect themselves, the business, and the men and women who rely on that business for their livelihood.

The superintendent has the right to accompany the inspectors wherever they go on site, and he or she should do so. The inspector should be followed on the roof, through the rafters, and wherever else they intend to go. The superintendent also needs to ask a few key questions of the inspector and needs to ask them often. Mainly, he or she needs to know why OSHA is there. What is the scope of their investigation? What specifically are they there to see? Once the superintendent knows what OSHA wants, he or she can then limit them to what they can see. If an inspector attempts to go outside that scope, then the superintendent needs to notify them immediately.

Question #3: What happens during the inspection?

During the inspection, the OSHA compliance officer will make a walkthrough of the project. The inspector’s main focus is usually on fall protection equipment and fall protection practices of the crew. Always make sure every harness, rope, and lanyard on site is properly maintained. If a harness has been previously impacted, it does not need to be on a jobsite. Such equipment should be discarded and replaced. Roofers are cited far too often because an old harness or frayed rope stays on a truck when it should have been discarded. This is an easy citation to avoid. Throughout the inspection, the OSHA officer may perform brief interviews with the crew and question crew members on various issues relating to the inspection. OSHA has the right under the CFR to perform these interviews in private, away from the superintendent. Although the questioning can be private, it must also be brief. The superintendent needs to object to any questioning that goes on for an excessive amount of time.

Next, an OSHA inspector may ask to interview the managers and superintendents on site. This is a common practice, and OSHA inspectors are within their rights granted by the CFR to request such an interview; however, company managers have the right to refuse an interview without counsel present. This is important to remember because poor statements about safety from a crewman can hurt your case, but poor statements about safety from a supervisor can destroy your case. The only discussion going on between a supervisor and an OSHA compliance office during the walkthrough inspection should involve the scope of the inspection. The superintendent should not answer any questions regarding safety protocols, equipment, or practices without the assistance of counsel. If OSHA wants to speak with a manager, supervisor, or superintendent, they must do so with an attorney present. Paying for a lawyer may be expensive, but paying for a “willful” OSHA citation can bankrupt a roofing company.

Remember Your Rights

An OSHA inspection can be a trying and frustrating time. A roofing contractor’s best defenses against costly citations are to teach satisfactory safety techniques within the crew; update and maintain the required safety equipment; ensure everyone is aware of the jobsite-specific safety plan; and remember their rights when OSHA visits the jobsite.

About the author: Anthony Tilton, Partner at Cotney Construction Law, focuses on all aspects of construction law and works primarily on matters relating to OSHA defense. 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.