The Contractor's Compass September 2018

THE

ASA’s

THE OFFICIAL EDUCATIONAL JOURNAL OF THE AMERICAN SUBCONTRACTORS ASSOCIATION

WWW.ASAONLINE.COM

How Are We Doing? Developing a Firm-wide Obsession with Customer Feedback

by Gregg Schoppman, FMI

Remember These 10 Commandments of Mediation

by Donald Gregory, Kegler, Brown, Hill and Ritter

The Top Contract Provisions for Subcontractors to Identify When Negotiating Subcontracts

by Masaki Yamada, Ahlers Cressman & Sleight, PLLC

How to Implement an Ownership Transition Without Disrupting Your Organization

by Michael McLin, Maxim Consulting Group

Sales and Marketing Strategy?

Do It!

by Tom Woodcock, Seal the Deal

Best Practices for Adopting New Technology for the Office and the Field

by Tyler Riddell, eSUB

OSHA Inspections and Defending Citations

by Julie A. Pace, The Cavanagh Law Firm

Legally Speaking: OSHA Compliance Tips on MultiEmployer Work Sites

and Joint-Employer Relationships

by Ross A. Boden, Sandberg, Phoenix & von Gontard, P.C.

SEPTEMBER 2018

Best Practices

SAVE THE DATE

March 6-9, 2019 | Nashville, Tennessee www.subexcel.com

© SeanPavonePhoto

THE

September 2018

EDITORIAL PURPOSE The Contractor’s Compass is the monthly educational journal of the Foundation of the American Subcontractors Association, Inc. (FASA) and part of FASA’s Contractors’ Knowledge Network. The journal is designed to equip construction subcontractors with the ideas, tools and tactics they need to thrive.

Features How Are We Doing? Developing a Firm-wide........................... 8 Obsession with Customer Feedback

by Gregg Schoppman, FMI

The views expressed by contributors to The Contractor’s Compass do not necessarily represent the opinions of FASA or the American Subcontractors Association, Inc. (ASA).

Remember These 10 Commandments of Mediation............... 11

by Donald Gregory, Kegler, Brown, Hill and Ritter

EDITORIAL STAFF Editor-in-Chief, Marc Ramsey

The Top Contract Provisions for Subcontractors to.............. 12 Identify When Negotiating Subcontracts

MISSION FASA was established in 1987 as a 501(c)(3) taxexempt entity to support research, education and public awareness. Through its Contractors’ Knowledge Network, FASA is committed to forging and exploring the critical issues shaping subcontractors and specialty trade contractors in the construction industry. FASA provides subcontractors and specialty trade contractors with the tools, techniques, practices, attitude and confidence they need to thrive and excel in the construction industry.

by Masaki Yamada, Ahlers Cressman & Sleight, PLLC

How to Implement an Ownership Transition Without............ 14 Disrupting Your Organization

by Michael McLin, Maxim Consulting Group

Sales and Marketing Strategy? Do It!................................... 16

FASA BOARD OF DIRECTORS Richard Wanner, President Letitia Haley Barker, Secretary-Treasurer Brian Johnson Robert Abney Anne Bigane Wilson, PE, CPC

by Tom Woodcock, Seal the Deal

Best Practices for Adopting New Technology........................ 19 for the Office and the Field

by Tyler Riddell, eSUB

SUBSCRIPTIONS The Contractor’s Compass is a free monthly publication for ASA members and nonmembers. Subscribe online at www.contractorsknowledgedepot.com.

ADVERTISING Interested in advertising? Contact Richard Bright at (703) 684-3450 or rbright@ASA-hq.com or advertising@ASA-hq.com.

EDITORIAL SUBMISSIONS Contributing authors are encouraged to submit a brief abstract of their article idea before providing a fulllength feature article. Feature articles should be no longer than 1,500 words and comply with The Associated Press style guidelines. Article submissions become the property of ASA and FASA. The editor reserves the right to edit all accepted editorial submissions for length, style, clarity, spelling and punctuation. Send abstracts and submissions for The Contractor’s Compass to communications@ASA-hq.com.

ABOUT ASA ASA is a nonprofit trade association of union and non-union subcontractors and suppliers. Through a nationwide network of local and state ASA associations, members receive information and education on relevant business issues and work together to protect their rights as an integral part of the construction team. For more information about becoming an ASA member, contact ASA at 1004 Duke St., Alexandria, VA 22314-3588, (703) 684-3450, membership@ASA-hq.com, or visit the ASA Web site, www.asaonline.com.

OSHA Inspections and Defending Citations.......................... 23

by Julie A. Pace, The Cavanagh Law Firm

Legally Speaking:

Departments ASA PRESIDENT’S LETTER....................................................................................4 CONTRACTOR COMMUNITY................................................................................ 6 LEGALLY SPEAKING.............................................................................................. 26 OSHA Compliance Tips on Multi-Employer Work Sites and Joint-Employer Relationships

by Ross A. Boden, Sandberg, Phoenix & von Gontard, P.C.

Quick Reference

LAYOUT Angela M Roe angelamroe@gmail.com © 2018 Foundation of the American Subcontractors Association, Inc.

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ASA/FASA CALENDAR..........................................................................................28 COMING UP............................................................................................................... 28 C O M P A S S

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Paycheck Checkup Can Prevent a Tax-Time Surprise It’s important to check your federal income tax withholding now to avoid an unexpected tax bill or penalty at tax time. The IRS Withholding Calculator can help.

Everyone should check their withholding. Due to tax law changes, it’s especially important to check now if you: • • • • • • • •

Are a two-income family Have two or more jobs at the same time Work a seasonal job or only work part of the year Claim credits like the child tax credit Have dependents age 17 or older Itemized your deductions on your 2017 return Have high income or a complex tax return Had a large tax refund or tax bill for 2017

Use the IRS Withholding Calculator to do a Paycheck Checkup • The IRS Withholding Calculator helps figure out if you should submit a new Form W-4 to your employer.

• Have your most recent pay stub and federal tax return on hand.

• The calculator’s results are only as accurate as the information you enter.

• Find the IRS calculator at IRS.gov/withholding.

Publication 5303 (6-2018) Catalog 71495F Department of the Treasury Internal Revenue Service www.irs.gov

ASA PRESIDENT’S LETTER Dear ASA Members: The Occupational Safety and Health Administration has released a series of training videos on OSHA’s standard for respirable crystalline silica in construction. The six new videos instruct users on methods for controlling exposure to silica dust when performing common construction tasks, or using construction equipment. The videos cover topics including handheld power saws, jackhammers, drills, and grinders.

OSHA also recently released a set of 53 Frequently Asked Questions to provide guidance to employers and employees.

Through the Construction Industry Safety Coalition, ASA was involved in the formulation of these FAQs. The development of the FAQs stemmed from litigation filed against OSHA by numerous construction industry trade associations, including ASA, challenging the legality of OSHA’s rule.

OSHA has also agreed to issue a Request for Information on Table 1 to revise the Table to improve its utility.

The FAQs are extensive and organized by topic. A short introductory paragraph is included for each group of questions and answers to provide background information about the underlying regulatory requirements. While employers are encouraged to review all of the FAQs, the following are some of the clarifications provided in the document.

Scope The standard applies to all occupational exposures to respirable crystalline silica in construction work, except where employee exposures will remain below an Action Level of 25 µg/m3, calculated as an eight-hour time weighted average, under any foreseeable conditions. The exception is intended to ensure that the standard does not apply to employees whose work results in only minimal silica exposures.

The FAQs clarify that many common construction tasks are likely to be outside the scope of the standard because they typically generate exposures below the Action Level. This includes mixing small amounts of mortar; mixing small amounts of concrete; mixing bagged, silica-free drywall compound; mixing bagged exterior

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insulation finishing system base and finish coat; and removing concrete formwork.

In addition, tasks where employees are working with silica-containing products that are, and are intended to be, handled while wet, are likely to generate exposures below the Action Level (examples include finishing and hand wiping block walls to remove excess wet mortar, pouring concrete, and grouting floor and wall tiles). The FAQs also state that many silica-generating tasks performed for only 15 minutes or less a day will fall outside the scope of the standard.

Table 1 The standard permits employers to select from two methods of compliance to control exposures to respirable crystalline silica: “specified exposure control methods” commonly referred to as Table 1 or “alternative exposure control methods.”

Employers that follow Table 1 do not have to assess employee exposures or separately ensure compliance with the permissible exposure limit. Table 1 includes common construction tasks.

The FAQs clarify that the Table 1 requirement that employers “[o]perate and maintain” tools “in accordance with manufacturer’s instructions to minimize dust emissions,” applies only to manufacturer instructions that are related to dust control. Other information in these instructions, including recommended respiratory protection, do not have to be followed for purposes of the standard.

For a few tasks on Table 1, respirator requirements vary based on task duration, i.e., whether the task is performed for “less than or equal to four hours/ shift” or “greater than four hours/shift.”

The FAQs make clear that an employer does not have to track the exact amount of time that employees are performing a job throughout a shift to be in compliance with Table 1. Rather, before a task is performed, an employer must make a good-faith judgment about whether the task will take more than four hours. If the employer anticipates that an employee will be engaged in a task for more than four hours, the employer must provide the

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employee, at the beginning of the shift, the respiratory protection required in the “greater than four hours/shift” column on Table 1. If, in contrast, the employer anticipates that an employee will be engaged in a task for four hours or less, the employer needs to provide respiratory protection in accordance with the “less than or equal to four hours/shift” column. Finally, the FAQs clarify that handheld powered demolition hammers with bushing tools and tile saws are covered by Table 1.

Housekeeping The standard includes requirements related to housekeeping on construction worksites. In particular, employers should not allow dry sweeping or dry brushing “where such activity could contribute to employee exposure to respirable crystalline silica unless wet sweeping, HEPAfiltered vacuuming or other methods that minimize the likelihood of exposure are not feasible.” In addition, employers must not allow compressed air to be used to clean clothing or surfaces where such activity could contribute to employee exposure to respirable crystalline silica unless: (1) the compressed air is used in conjunction with a ventilation system that effectively captures the dust cloud created by the compressed air, or (2) no alternative method is feasible.

The FAQs clarify that if employee exposure will remain below the allowable level under any foreseeable conditions, the prohibition on dry sweeping, dry brushing, and the use of compressed air for cleaning clothing and surfaces does not apply.

They also clarify that the prohibition on these activities only applies to housekeeping activities, not to the use of these practices to perform a work task.

ASA will continue to look for ways to work with OSHA to improve the workability of this significant rule.

Best Regards, Courtney Little 2018-19 ASA President

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OSHA Proposes to Eliminate Requirement That Large Employers Electronically Report Workers’ Injuries and Illnesses

by Sept. 28, 2018. Submit comments electronically via the federal e-rulemaking portal at https://www. regulations.gov.

On July 30, the Occupational Safety and Health Administration issued a Notice of Proposed Rulemaking to eliminate the requirement to electronically submit information from OSHA Form 300, Log of Work-Related Injuries and Illnesses, and OSHA Form 301, Injury and Illness Incident Report, for establishments with 250 or more employees that are currently required to maintain injury and illness records. These establishments would be required to electronically submit information only from OSHA Form 300A, Summary of Work-Related Injuries and Illnesses. In addition, OSHA proposes to require covered employers to submit their Employer Identification Number electronically along with their injury and illness data submission.

OSHA seeks to amend its recordkeeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act. OSHA has preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information, and the reporting burden on employers are unjustified given the uncertain benefits of collecting the information. OSHA believes that this proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule.

OSHA is seeking comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure. Comments must be submitted

Treasury Issues Proposed Regulations on New 20 Percent Deduction for Pass-Through Businesses

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The U.S. Department of the Treasury and Internal Revenue Service issued proposed regulations on Aug. 8 implementing a significant provision of the Tax Cuts and Jobs Act, which allows owners of sole proprietorships, partnerships, trusts, and S corporations to deduct 20 percent of their qualified business income. The proposed rules ensure that this historic tax cut will be available to the broadest spectrum of American businesses, consistent with the law, while minimizing compliance costs and streamlining the process for claiming the deduction.

“The pass-through deduction is an important tax cut for small and mid-size businesses, reducing their effective tax rates to their lowest levels since the 1930s,” said Secretary Steven T. Mnuchin. “Pass-through businesses play a critical role in our economy. This 20-percent deduction will lead to more investment in U.S. companies and higher wages for hardworking Americans.”

The proposed rules: 1. Ensure that all small business income below $315,000 for married couples filing jointly (and $157,500 for single filers) is eligible for the deduction; 2. Provide clarity and flexibility for filers over those income thresholds by: o Including “aggregation rules” for filers with pass-through income from multiple sources;

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o Issuing guidance relating to specified service, trade or business (SSTB) income above the thresholds, which may be subject to limitation for the purposes of claiming the deduction; and o Allowing a de minimis exception to avoid unnecessary compliance costs for businesses earning only a small percentage of SSTB income; and 3. Establish anti-abuse safeguards to prevent improper tax avoidance schemes, such as relabeling employees as independent contractors.

Qualified business income includes domestic income from a trade or business. Employee income, capital gains, interest, and dividend income are excluded from this deduction.

Interest Rate Increases for Late Payments on Federal Projects Contractors and suppliers that do business with the federal government should be aware that beginning on July 18, 2018, the interest rate used to calculate the penalty for late payments on federal contracts increased to 3.500 percent, up from 2.625 percent during the first half of 2018. The new rate is effective through Dec. 31, 2018.

The Prompt Payment Act of 1982 and the Contract Disputes Act of 1978 give the Secretary of the Treasury the authority to set the rate used to calculate interest due to providers of goods and services to the federal government. The U.S. Department of Treasury’s Fiscal Service updates the rate every six months.

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Tax Bill This Year? Check EEOC Publishes Workplace Withholding Soon, Avoid Another Harassment Prevention One Next Year Guidance

Suicide in the Construction Industry: What You Need to Know

Taxpayers who owed additional tax when they filed their 2017 federal tax return earlier this year can avoid another unexpected tax bill next year by doing a “paycheck checkup” as soon as possible, according to the Internal Revenue Service.

The Tax Cuts and Jobs Act, the tax reform legislation passed in December, made major changes to the tax law, including increasing the standard deduction, removing personal exemptions, increasing the Child Tax Credit, limiting or discontinuing certain deductions and changing tax rates and brackets. These far-reaching changes could have a big impact on the tax refund or balance due on the tax return people file next year.

The IRS encourages every employee to do a “paycheck checkup” soon to ensure they have the correct amount of tax taken out of their pay. Checking and adjusting withholding now can prevent an unexpected tax bill and penalties next year at tax time.

The IRS offers a variety of resources to help taxpayers learn whether they need to make changes soon to avoid any surprises come tax time, including a paycheck checkup flier; the Publication 505, Tax Withholding and Estimated Tax; a video, How to Use Withholding Calculator for Paycheck Checkup; a Web page, Get a Jump on Next Year’s Taxes; and its online Withholding Calculator. For even more information, visit irs.gov/withholding and IRS.gov/getready.

The workplace is a critical place for changing how our country addresses mental health. This is particularly true in the construction industry, which ranks first in the number of suicide deaths and second in the suicide rate, according to a study by the Centers for Disease Control and Prevention. Working through the Construction Industry Alliance for Suicide Prevention, ASA is making materials available to its members to help them implement suicide prevention programs in their companies.

Certainly, suicide is not an easy topic, but it is critical to start the conversation. The process starts with bold leadership by groundbreakers who are willing to admit “this matters to the well-being of our company and the families of our employees.” A first step is to integrate suicide prevention and mental health awareness into their existing safety culture. One tool to help you in your own company is the A Construction Industry Blueprint: Suicide Prevention in the Workplace, a 15-page handbook that lists danger signs, suggests conversation tips, and provides sample tool box talks.

Visit the Alliance Web site for more tools to help your company address the mental health challenges of your employees.

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The U.S. Equal Employment Opportunity Commission published Promising Practices for Preventing Harassment, which contains harassment prevention recommendations for employers in four broad categories: • Leadership and accountability.

• Harassment policies.

• Harassment complaint systems.

• Harassment training.

For each category, the publication lists actions employers can take. For example: • Allocating sufficient resources for effective harassment prevention strategies.

• Crafting an unequivocal statement that harassment based on, at a minimum, any legally protected characteristic, is prohibited.

• Conducting regular, interactive, and comprehensive harassment prevention training for all employees.

The document states that while the practices it discusses are not legal requirements under federal employment discrimination laws, they may enhance compliance efforts.

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Feature How Are We Doing? Developing a Firm-wide Obsession with Customer Feedback

by Gregg Schoppman, FMI During the 1980s, the mayor of New York City was the famous and outspoken Ed Koch. One of the interesting remnants of his tenue was his affinity for asking his constituency the question, “how are we doing?” In today’s hyper explosive political environment, asking this question to voters would be opening the floodgates of criticism and vitriol. However, this three-term mayor asked the citizens throughout the five boroughs to solicit feedback about the local government performance. It is safe to say, there was no shortage of opinions then either, but think about how often we are asked our opinions as voters, consumers, residents, etc. Now, how often is that feedback heard and acted upon?

The voice of the customer is one that often creates panic and fear in the hearts of many business owners. Businesses exist to serve the customer—without them, there is no business. In competitive markets and niches, customers have options and often vote with their feet, creating turmoil in pricing models and delivery options. Many firms steer well clear of asking customer the question of “how are we doing” primarily because of the answer they will receive. No news is good news and ignorance is bliss.

However, if you are not a firm that actively utilizes a feedback mechanism, realize there is a group that is asking the question about “how you are doing.” Your competition. Any great competitor will use this as a pry bar to demonstrate their capabilities. “Our competition is weak on safety. Well, did we mention that we have a mod rate of .45? Did you know we have a full time safety director?”

Regardless of what the competition is using your foibles for, great firms

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realize that feedback is an essential gift to drive superior long-term performance.

Delivery It is important to predicate this paragraph with the mantra, “NO ONE LIKES SURVEYS.” They can be tedious, intrusive, time-consuming, and most importantly, drive a perception of “what’s in it for me.” Why should I take a survey for you that serves you? The reason that so many people have an apathetic stance on surveys is because they see little to no improvements resulting from the survey. Sure, you can win a gift card for your investment of time but in reality, there is little upside for my time when you will most likely do nothing as a result of this questionnaire. Truer words have never been said.

First it is important to create a simple survey that is user friendly. No one wants to see “This survey should take approximately 20 minutes to complete …” Limit your questions to several key drivers: • How did we do in communicating with your during this project?

• Did we meet or exceed your expectations on schedule?

• Did we drive value throughout our processes?

• Would you use our firm again?

Whether it is yes/no or some Likert scale, the questions should be direct and tied to the values of the firm.

A question about scheduling is perfect, especially for a firm that engaging in many fast track projects. Even if a firm only engages in hard-bid projects, there is great value in receiving this feedback. For instance, questions might provide insight on safety

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or operational issues facing the business. Productivity could be enhanced through feedback on crew sizes and efficacy of crews and equipment.

Additionally, there is an over-reliance on electronic surveys. The “DELETE” button is a wonderful tool and unfortunately allows the customer to kick the can down to the next customer. If a firm is failing to receive feedback it is important to ask specific questions about the strategy: • Is the survey too complicated?

• Do we not follow-up with the customer?

• Do we send too many surveys to the same customer?

• Should we make this an interview?

• Should we use a self-addressed stamped postcard? (Something about wasting that stamp …)

Regardless of the survey vehicle, it is critical that a firm communicates with the customer. For instance, whether the feedback is positive or negative, the firm has an obligation to respond the customer to not only thank them for taking the time to provide this gift but also demonstrate a willingness to make change. There should be a process within the firm to adequately handle critical feedback. One example might be creating a mandatory visit by the CEO or president with the customer in situations where feedback scores are less than a certain level. It is not meant to be retaliatory and a contractor should never become defensive when they see critical feedback even if they believe it is false. Rather, it should demonstrate a sincere willingness to listen and most importantly serve as a call to action internally.

When a customer sees the fruits of

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their labor manifested in the form of a strategic change, i.e., improved safety, better communication, etc., they are more apt to respond the next time.

Being peppered with 10 emails a quarter and seeing zero improvements is the quickest way to drive a deeper wedge in customer relations.

Metrics While the feedback helps a firm make strategic improvements in its delivery, it is also important to use this data to provide a scoreboard internally. While most will agree that four out of five dentists endorse gum chewing, it is equally interesting how powerful numbers are to businesses. For instance, assume a firm has a vision to “Become the best contractor in their geographic market.” How would a company measure “becoming the best?” While there is no agreed upon definition of best, it is important for a firm to have some set of parameters. A metric such as

“net promoter score” is the equivalent of 80 percent of dentists agreeing on gum. Imagine the impact of a firm being able to say, “According to our customer research, we have a 98 percent approval rating amongst our peers, which is 16 points higher than the industry average …” We live in a world that routinely talks about data and numbers but how many firms transform the data into marketing genius? Once again, it is important to realize the benefit is not some stodgy set of numbers but the nuggets of business knowledge that customers share about what they like and dislike about you. However, metrics sell and create believers.

Lastly, it is important to have an internal feedback loop that is constructive. While it is easy to fixate on the negative feedback, it is equally important to create chatter around the positive responses. For instance, firms that only discuss the negative will quickly create a fearful culture of

customer comment cards. Celebrate the wins and use those testimonials as internal evangelism about the right behaviors managers, estimators, accountants, superintendents, technicians and owners should exhibit.

Customer feedback is a gift. Done correctly, it serves as a sounding board for the firm’s overarching strategy. Market research done in a vacuum is simply the generation of useless data. Determining while the dentists like gum and endorse gumchewing become game changing questions for the gum business. Now we can work on those 20 percent who need to see the light.

As a principal with FMI, Tampa, Fla., Gregg Schoppman specializes in the areas of productivity and project management. He also leads FMI’s project management consulting practice. He can be reached at (813) 636-1259 or gschoppman@fminet.com.

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“High Times—Navigating a Drug Free Workplace in Light of Marijuana Use Laws and Restrictions on Post-Accident Testing” (Item # 8125) In this video-on-demand, attorney Philip J. Siegel, Hendrick, Phillips, Salzman & Siegel, examines the various medical marijuana use laws around the country and discusses various protections such use laws may provide to employees. Siegel provides a roadmap on how to navigate through the difficult issues which arise with an employee using medical marijuana. Siegel also explains what an employer can and cannot do without running afoul of the Americans with Disability Act or state disability discrimination laws when it learns an employee is a registered medical marijuana user. Furthermore, Siegel discusses how some post-accident drug testing policies may be in violation of OSHA’s anti-retaliation rule, which recently went into effect. $65 ASA members | $95 nonmembers This and other on-demand videos are available through FASA’s Contractors’ Knowledge Depot.

ORDER ONLINE AT www.contractorsknowledgedepot.com C O N T R A C T O R ’ S

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Feature Remember These 10 Commandments of Mediation

by Donald Gregory, Esq., Kegler, Brown, Hill and Ritter Legal disputes are not new. A country lawyer whose image ended up on Mount Rushmore warned about the perils of litigation: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser— in fees, expenses and waste of time.”— Abraham Lincoln In recent years many in the construction industry have turned to mediation in an effort to avoid the costs and hassles associated with protracted litigation.

As more subcontractors and their lawyers are dealing with mediation on a regular basis, following these “10 Commandments” may help when dealing with a problem of biblical proportions.

1.Thou shall not wait too long to mediate. Many of the advantages of a negotiated resolution dissipate with the passage of time. The sooner you resolve, the sooner the parties can get back to their core business.

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2. Thou shall expect to avoid legal fees and uncertainty if a settlement is reached. All serious disputes involve a lot of legal fees, time and worry, all of which can be terminated when the dispute is resolved.

3. Thou shall not forget your people skills. A mediation is no time for “table pounding” and offending the other side.

You need their respect, and likeability never hurts.

4. Thou shall keep an open mind.

You need to listen to the other side’s concerns, and the mediator’s assessment, and leave preconceived notions behind.

5.Thou shall not negotiate with the mediator. If you are not “shooting straight” with the mediator, you are only hurting the mediator’s chances of securing a resolution—which is why you are there.

6. Thou shall be a problem solver.

Anyone can take a position and argue why it is right. Real value is provided when one brings experience and judgment together to solve a problem.

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7. Thou shall not expect to win. If either—or both sides—expect to win through capitulation of the other side there will be no reason to settle.

8 Thou shall strive to be creative.

Some of the best settlements involve some creativity. Thinking about what the other side needs that is not too tough for your side to swallow is a good place to start.

9Thou shall not bring a firm bottom line to the mediation. You need to have flexibility and reflect the dynamics that occur in the mediation. Having the real decision makers present throughout is the only way to go.

10.Thou shall expect a fair settlement “when both sides are equally displeased.” A settlement of a tough case typically only occurs when all involved have stretched their comfort zone as far as they can stand.

Donald Gregory, Esq., is a director and chair of the construction practice area for Kegler, Brown, Hill and Ritter, Columbus, Ohio, ASA’s legal counsel.

Gregory can be reached at (614) 4625400 or dgregory@keglerbrown.com.

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Feature The Top Contract Provisions for Subcontractors to Identify When Negotiating Subcontracts

by Masaki James Yamada, Ahlers Cressman & Sleight, PLLC Congratulations, you have the winning bid! Now what? Do the work and get paid, right? Unfortunately, as all of us familiar with construction know, it is not that simple. (This can be especially true on public works projects.)

Complying with your subcontract, which includes doing the work, will get you paid. However, contracts can sometimes be daunting. They are difficult to understand, can be an inch thick, and contain hundreds of provisions. While there is no shortcut to reviewing your entire subcontract, this article points out some of the top subcontract provisions—in no particular order—to which you should pay very close attention.

1. Contract Documents (Incorporation Clauses) It is absolutely critical to have copies and understand the contents of all “Contract Documents” because they are all considered a part of your contract. You will likely be bound to all documents incorporated by reference.

Under an incorporation clause, a subcontractor can be bound to the provisions of the prime contract between the general contractor and the owner, even when the subcontract states something differently.

2. Scope of Work The scope of work clause is probably the least written about and likely the most important provision in a well-crafted construction agreement.

Most construction disputes arise out of some type of disagreement as to what is and what is not in the project’s scope of work. A properly written

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scope of work provision will preclude disputes and ensure a clear understanding as to which party is responsible for what work and who bears which risks on the job. “Scope gaps” in items such as the adequacy and completeness of design documents, coordination responsibilities which arise during construction, and responsibility for correcting incomplete/deficient designs can all lead to disputes, which could be avoided with a welldrafted scope of work provision.

3. Price and Payment (‘Paid-IfPaid’ vs. ‘Paid-When-Paid’) In theory, a project owner and contractor are limited only by their own creativity in determining how and when the contractor will be compensated for its work. However, nearly all projects are priced under some variation or combination of a small number of models: lump sum, cost or costplus, and unit pricing. Choosing the right price model for the project can affect how much you profit. The timing of payment is also important. Most subcontracts contain provisions that the subcontractor will not receive payment until the owner pays the GC. These payment provisions typically take two forms (1) “paid- if-paid” or (2) “paid-when-paid.” Generally, paidif-paid means a subcontractor does not get paid unless and until the GC is paid, whereas paid-when-paid provision only allows the GC to delay payment to the subcontractor for some period of time while it seeks the delayed payment from the owner.

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4. Schedule On most, if not all projects (again, especially public works projects), completing your work timely is just as important as completing the work correctly. A GC’s schedule should be attached to a subcontract because it will serve as the baseline schedule.

For subcontractors, be sure to compare the contract schedule to the bid schedule and seek any necessary cost increases due to a changed schedule. Also, watch for provisions that describe “Substantial Completion” as “Final Completion.”

5. Changes, Claims, and Notice Generally, a claim notice provision and/or change order provision provides the required steps a contractor must take in order to make a “claim” for additional compensation or time for completion. In Washington State, these claim notice provisions are strictly enforced by the courts. If a claim is not made pursuant to the contract, additional compensation/time is not awarded and, thereby, waived. This is true, in many instances, even when you performed the additional work.

See Mike M. Johnson v. County of Spokane, 150 Wn.2d 375, 400, 78 P.3d 161 (2003).

6. Differing Site Conditions The purpose of a differing site condition provision is to allocate the risk of unknown/unforeseen conditions between the parties based on their respective duties regarding construction. Contracts that allocate the risk of the owner result in (1) no windfalls or disasters for the contractor, and (2)

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more accurate bidding, without inflation for risks that may not happen.

Subcontractors should be very wary of “shared risk” clauses contained in the differing site condition provisions.

7. Indemnification (and Insurance) Indemnity clauses require one party to take on the obligation to cover the loss or damage that has been or might be incurred by another party. Basically, one party to the contract agrees to assume responsibility for certain liability resulting from third-party claims against the other party to the contract.

(Note: In Washington State, an indemnitor cannot indemnify an indemnitee for the indemnitee’s own negligence).

If you do not have this in your contract, you could be held responsible for property damage or bodily injury caused by the negligence of others on the project (owner, GC, architect, consultant, other subcontractors) or others not even connected with your work.

Well-written insurance clauses should accompany these indemnification clauses, so that you are not completely reliant on the indemnitor’s financial ability to indemnify you.

8. Damages Damages mean the type of money that is recoverable for a breach of contract (or tort liability). Generally, damages in your public works contract will come in three categories: (1) actual damages; (2) liquidated damages; and, (3) consequential damages. Actual losses are the real and proven injury suffered as a result of the breach of contract. Examples of

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consequential damages include most losses of profits, business, use, financing, reputation, and bonding capacity.

As a powerful mechanism to control contract risk, increase predictability, and reduce the cost and complexity of potential disputes, we frequently recommend that our clients’ contracts include a mutual waiver of consequential damages. At its most basic level, a liquidated damages provision is an agreement to forgo potential disputes about actual damages in the event of a breach, instead stipulating in advance to a reasonable estimate of the probable damages. Both a sword and a shield, a well-crafted liquidated damages clause can significantly simplify one of the most common sources of construction disputes—delay—and, in some cases, even keep disputes from boiling over into litigation or arbitration.

9. Termination There are generally two types of termination provisions: (1) termination for convenience; and, (2) termination for cause. An example of a termination for convenience provision is as follows: “The Contractor shall have the right at any time, and for any reason, including convenience, to terminate this Subcontract and require the Subcontractor to cease work.”

This is obviously favorable to a GC and unfavorable for subcontractors. In the alternative, subcontractors should request that in the event of any termination, which is not justified by default, the subcontractor shall be entitled to payment for all costs incurred by the

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subcontractor for which the subcontractor has not received payment, plus reasonable overhead, expenses, and profit on unperformed work.

10. Dispute resolution Dispute resolution clauses dictate the forum in which the parties may resolve legal disputes. Ways of resolving disputes include mediation as a prerequisite to litigation, litigation through arbitration instead of court, litigation in court, or the use of dispute resolution boards. There are many advantages and disadvantages for each forum to consider before agreeing to the terms in this provision of your contract.

The above list and discussion on subcontract provisions are by no means exhaustive, but it does offer a brief overview of some of the more important provisions to which you should pay close attention. It is recommended that you consult your attorney about any questions you may have about your subcontract.

Masaki James Yamada is a partner at Ahlers Cressman & Sleight PLLC. His practice focuses on matters involving complex construction claims, construction contracts, construction L&I issues, construction defects, and related insurance matters. His practice also includes commercial real estate and communications law (i.e. cell towers). Yamada regularly represents general contractors, subcontractors, developers, business and property owners, and design professionals. He can be reached at (206) 529-3015 or masaki.yamada@ acslawyers.com.

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Feature How to Implement an Ownership Transition Without Disrupting Your Organization

by Michael McLin, Maxim Consulting Group Ownership transition is often one of the least considered aspects of managing a firm, but it is the most critical in terms of realizing one’s personal retirement goals and continuing the business for the next generation. Ownership transitions cannot be snap decisions, even within a successful firm. You must make a conscious decision to leave— long before you are ready to do so.

For the firm to continue to be successful without its founder, a thoughtful transition needs to be implemented, especially so as not to disrupt your organization. The prospect of change can be daunting. But if managed correctly, the process doesn’t have to be painful. In today’s fast-paced society, the difference between success and failure can lie in a company culture’s ability to adapt which requires an intimate understanding of the human side, as well—the company’s culture, values, people, and behaviors that must be changed to deliver the desired results.

Many senior executives recognize this, and it worries them. CEOs often wonder about “how the workforce will react,” “getting my team to work together and pull this off,” “leading my people through this,” “retaining our unique values and sense of identity,” or “creating a culture of commitment and performance.”

Any transformation of significance will create people issues. New leaders will be asked to step up, jobs will be changed, new skills and capabilities must be developed, and people will be uncertain and will resist. Dealing with these issues on a reactive, case-by-case basis puts speed, morale, and results at risk. A formal approach for managing change—beginning with the leadership team and then engaging key stakeholders and leaders—should be developed early but adapted often as change moves through the organization.

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The following checklist provides direction to those planning an ownership transition with limited disruption.

Begin the Planning Early Train your replacements. That’s the best way to assure that you’ll be able to move out of the company.

In the professional world, one essentially chooses either to start a company or to work for someone else. The decision often comes down to determining if you have an entrepreneurial drive and a willingness to accept the risks that go along with starting a business.

When it comes to planning the transition of a firm, the owner must find ways to imbue next-generation leaders with the necessary entrepreneurial spirit and encourage them to assume the associated risks. Naturally, a tolerance for risk comes with increased knowledge of the business, real-world experience, and mentoring.

While it is often necessary to identify more than one new leader to assume the many responsibilities that the owner may have previously held, it is important that only one of those new leaders be charged with the overall leadership of the firm going forward.

Firms that have transitioned with more than one executive have not been as successful as those headed by a single person who carries both the responsibility and the authority to act on behalf of the firm.

It seems logical to assign each team member a single aspect of the management of the firm: people, finance, design leadership, process, and technology.

Consider Letting Opportunities Determine the Timeframe An employee stock ownership plan is a great financial vehicle used to transfer ownership at a company. An ESOP

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transition could happen in two phases to provide the company the financial capability to manage the debt. This can also allow continued interest in the fortunes of the firm throughout the transition and involve employees to keep them feeling valued and represented during times of change.

The Cultural Transition May Be Difficult In some ways, it’s easier to hire an outsider to take over the firm than it is to elevate an insider to a leadership position. Work relationships that were formerly tight-knit can or might be necessarily curbed. But with additional authority can come additional responsibility, and the interpersonal chemistry necessarily required change. To make clear-minded decisions, the management team needs to take emotions out of the equation. This can be initially difficult to navigate.

Transition to a new leadership group will potentially be difficult for many staffers, as well. Often the trust and confidence placed in the original founder needs to be built anew with both clients and staff. In every communication of a potential change, new leaders must be quick to acknowledge the success of the previous owners and the opportunity to build on that success.

Avoid Abrupt Changes to the Business Model Construction cultures are unique, each built on the sensitivity that the practitioners share: emotion, vision, balance. It is important to communicate changes long before they occur, to work out the possible implications, and to prepare the staff well in advance.

Communicate clearly to staff how decisions would be made and by whom.

Still, it can difficult for all involved to get used to this idea.

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Communication Is the Key We know this to be true in every aspect of a business, but it is especially critical in a transition. Make continual announcements at staff meetings and electronically to prepare staff for the transition. Make the appointment of the next leadership team at event and lay the groundwork with staff well in advance so that promotions are understood and anticipated.

Often, it’s best to hear messages about transition from other individuals who have been through it before or who have an area of expertise. Bring in transition consultants to answer questions. Use the knowledge of speakers and trainers to support the decisions being made and build confidence in the new leadership team. Talk to employees often about what the transition will mean to them.

One tip for individuals who will be taking the reins: Don’t over-communicate to staff.

Be Decisive Whether receiving or giving authority, make decisions decisively so staff is aware that all options have been considered and the best course of action has been chosen.

Having said this, the new team often still checks with key staffers when a major internal decision is being made.

New equipment purchases, maternity policy, markets to pursue, and the like—all of these can be more effectively realized by taking advantage of the collective intelligence of the staff.

If you choose to tap into staff this way, however, make sure you inform them to what level their input is being considered; ultimately, the final authority for a given decision will rest with the management team. While there are certain things that can be decided by the entire staff, major decisions must be made authoritatively by management.

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Make Changes Quickly, and Make Them Stick There are undoubtedly some nagging issues that need to be resolved: better communication tools, maybe a new staff intranet, upgrades to technology, even something as simple as painting a wall or a more relaxed dress code.

Your staff needs to know that things will change, and that those changes will be beneficial to them.

If you have ideas to expand on your current service offerings, develop partnerships with other design-centered organizations, or even redefine your core service offerings, it will be incumbent on the new leadership team to prove to the staff that those ideas are viable before they are widely adopted.

Larger scale changes such as these need some time to percolate; make sure you provide regular updates to staff on progress toward these initiatives.

Grow Faster Than the Firm Leaders not only need to be in the habit of accepting risk, communicating proactively, and being decisive, but they also need to take advantage of every opportunity for leadership training and development.

Make sure there is a new peer support system to aid new leaders. Be sure to take leadership positions in professional organizations and spread your knowledge to peers, becoming not only an industry leader but also a leader in the community where you live and work. Stepping up in this way can only enhance your knowledge, reputation, and abilities, allowing you to give back to the communities you serve.

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next round of leaders. The business will continue to grow and thrive, and future leaders will make themselves known as time passes.

Training those replacements is important but encouraging them with proper compensation is also key. Once you’ve identified the next generation, it’s important to keep them on staff. There is nothing as disastrous as one or a group of employees suddenly deciding to be entrepreneurs and breaking off from the company, only to become competitors.

Ensure your investment by mentoring and discussing leadership opportunities early and often.

Also consider generational differences. Are you building the kind of company that the next generation of leaders will want to inherit? Do you need to make changes to policies, physical office space, or your client list that will motivate and excite potential leaders?

We know that everything changes; communicating your openness to change and responding to the needs of the next generation will be a big factor in keeping them on board.

Ultimately, change is an important ingredient to any organization’s growth and progression. All change will involve some disruption. To achieve success with a change initiative, the level of disruption must be managed and tempered by managers. They must remain conscious of and be prepared for the disruption it can bring but not let that disruption become a blockage to realizing benefits of change.

Maxim Consulting Group welcomes the opportunity to assist subcontractors with their ownership succession.

Michael McLin can be reached at (303) 688-0503 or michael.mclin@maximconsulting.com.

Ownership transition is not an instantaneous process; it is now important to identify, encourage, and cultivate the

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Feature Sales and Marketing Strategy? Do It!

by Tom Woodcock, Seal the Deal I’m regularly asked by clients and contractors to help them develop a sales and marketing strategy. They want to know what magical recipe will have clients breaking down their door. Then they’ll tell me they don’t really want to spend a lot of money and have no extra time to work on it. Really? Being a good contractor and knowing how to run a project doesn’t get you business, it allows you to keep it. Before you even think of developing a strategy you have to understand that it is going to cost you and you’re going to have to invest time. Cheap, effortless marketing usually produces disappointment. You end up relegated to bidding public projects and never get asked to perform projects that never see the public bidding venue. Those projects tend to be the most profitable and require the greatest sales effort.

To assume that simply throwing money at your Web site or doing a weekly Facebook post will supercharge your sales effort, is simply sophomoric. To secure the best opportunities available, your sales and marketing have to contain specific critical success factors. First marketing: 1. Attractive Brand—What good is a brand if people can’t engage with it? Is it interesting? If you put your logo on a cap will people wear it?

What good is giving Koozie cups away if they’re flat out ugly? Would someone wear you golf shirt? If you don’t invest in the workmanship of your image, how can the customer trust your workmanship on the project? Create a top-flight

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image.

1. Where You’re Marketing—Where are you showcasing that image and the message behind it? Are they customer-rich environments?

Will you stand out? Be strategic where you’re going to gain the most effective exposure—including which digital platform you choose to saturate.

1. Carry the Brand—Have your marketing materials on you at all times. Be the brand! There’s no reason to craft a stellar image if you’re not going to carry it with you. To get people to fall in love with your brand, they have to see it!

Secondly, the sales side.

1. Competitive Separation—Those that know me or have worked with me will tell you I eat and breathe this principle. If you cannot convey value that separates you from your competitor, why should they use you? Even more important, spend more to use you. This factor is rarely researched and developed. Most contractors gravitate to how well they service their customers. Snooooooozola! This is a fast-moving, information-driven and user-accessible generation. “I do a good job” isn’t a sales position anymore. It’s expected.

1. Time Investment—You must invest time into a sales strategy.

Mapping out a plan and targeting customers is useless if you don’t get out and actually do it.

Blocking consistent time out for sales work is paramount to a sales

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effort’s success. If sales is the most important aspect of your business, shouldn’t it merit the highest percentage of your time? Argue otherwise … please!

1. Get Sales Educated—The sales education process is never ending.

Most people in the construction industry have never been properly sales trained. They assume their industry is so unique it simply doesn’t apply. Big mistake. If you don’t invest in training seminars or classes, buy sales materials and read. Self educate. Do it and be constantly improving. Adding new technology, approaches and innovations while maintaining tried principles will drive a sales effort.

There’s no doubt that every good business person wants to improve in the area of sales and marketing if they’re worth their salt. A key to remember is those are two separate words. You can’t expect marketing to sell for you and sales to market. Each has a role, but ultimately sales brings home the bacon.

Marketing is much more tangible and gets the greater attention in most cases. That’s because it’s physical in nature and there’s a plethora of consultants out there selling marketing services. They all seem to have great ideas and appear to be the answer to weak revenue as well as profitability numbers. So, thousands of dollars get spent. Such as a Web site upgrade that customers spend a minute and a half trying to find a phone number or email address. People still like to deal with people. Don’t believe me? How much do you love that automated

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phone service? See, that’s what I mean. Someone thought that was a good idea and a great cost savings.

Probably pitched by a sales “person” selling you phone service. The irony is startling.

The concept of using technology to replace true sales work actually negates the need for a sales strategy. This is because you won’t be selling. Think of it in painting terms.

Imagine if you put paint on a brush, put the brush on a wall and waited for the wall to move. That’s like expecting your marketing to sell for you.

You have the tools for the image you want, but without the work there will be no change. Then you get frustrated with the can of paint and the brush! A true sales and marketing strategy requires movement. Setting a call and event schedule, then keeping that schedule. The easiest aspect of your business to skip when things get busy is your customer sales contact and event attendance. They are not always Point A to Point B opportunities, so many write them off. They’ll hope their marketing fills the gap. It can even go as far as your marketing damaging your business as you make bold statements and commitments via your marketing with no responsive action—claims such as, “We always answer the phone” or “We are available 24/7.” I’ve seen countless marketing campaigns making such claims when I know they’ll never keep their word when things get a little hectic.

Setting a sales and marketing strategy requires definite goals, a willingness to commit time and resources as

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well as professional assistance putting the strategy together. Often, contractors will try and design their own marketing pieces, manage their digital footprint or create their Web site internally. The majority of the time this collapses in on itself. When it’s discovered the time and creativity it takes to complete this task, it’s usually abandoned mid stream. It directly affects the sales effort as the marketing support isn’t there to spread or reinforce the brand. Proper sales tools are missing and the sales job cannot be effectively done. Make sure you’ve engaged someone that can help design a brand vehicle or campaign that hits your target customers directly. They need to be able to maximize the dollars spent in setting the stage for sales. Once marketing is in place, ease of maintenance should be the result. Then developing a sales strategy defining your approach to that targeted customer pool is critical. Where does that customer type congregate? How many contacts in each target are involved with making a buying decision?

What’s the total number of effective targets can you go after and still protect your existing customer base?

These are basic questions that need to be answered on the sales side of your strategy. Then it’s a matter of setting up a time management system that allows you enough time to pursue new sales opportunities while cultivating existing relationships. There’s a balance between the two that needs to be struck. Any strategy that focuses on one but not the other will create a revenue ceiling. That’s why many contractors have that treading water

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feeling. A two-pronged sales attack is the most vibrant. It spurs growth and increases profitability at the same time. Understanding that the quickest way to grow revenue AND profitability is the expansion of the percentage of business you get from existing customers. Obviously, they would need to have recurring opportunity. If your business model lends to single transactions with customers then the maintenance portion is to primarily cultivate a referral network. In either case, a balanced approach is required.

Sales and marketing strategies can be a challenge. Though most individuals in the construction industry realize its importance, those strategies are rarely built effectively—if built at all. Setting aside time to develop and employ a good strategy will bring results. Truly, how could it not? That’s what amazes me about the wonderful world of selling. If you actually do it, it actually works. Problem is it takes work to actually do it!

Tom Woodcock, president, Seal the Deal, Manchester, Mo., is a speaker, trainer, and author of the book You’re Not Sellin’, They’re Buyin’! He can be reached at (314) 775-9217 or www. tomwoodcocksealthedeal.com.

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Feature Best Practices for Adopting New Technology for the Office and the Field At the Core of Technology Adoption Is … Communication

by Tyler Riddell, eSUB Construction Software Technology is here to stay, and if you’re not taking advantage of it to improve your construction company, its processes and staff’s ability to do more with less than your computing power to drive growth will run its course with by the next economic downturn. You must adapt or risk being outpaced by competitors. The following article addresses highlights common issues facing firms struggling with technology adoption and how easy it is to transform from paper to iPad if this is your choice of mobile tablet.

Long-Standing ‘NOT SO’ Best Practices As our desktops moved to computer screens in the early 1990s, new software tailored for the estimating process entered the construction industry and

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has yet to yield its hold: Microsoft Excel.

Excel is so ingrained in construction that whole generations of contractors have grown up with the concept that it is the best and only solution. Most degree programs in construction even require coursework in Excel.

However, Excel does not integrate every system that a company may adopt, including accounting or scheduling, and does not have the processing power for large, multi-user projects involving complex calculations and several projects underway. Excel is simply a tool in the data silos that permeate construction company departments (front office, back office, the field) and their manual workflows. However, Excel is not the bad guy, but 30-plus years of no productivity gains in the construction industry is endemic and illustrates the conversation must change.

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Drivers for Change For a company and workforce hanging on to old systems, they have created sedentary obstacles for progress that require a new strategic focus and commitment from top management to eliminate. A new attitude, empowered by new technology specifically for subcontractors to streamline and implement efficiencies on the construction project, is the perfect medicine. So, what’s driving change?

• Labor shortage and stagnant productivity • High costs and risk mitigation • Data silos are crippling organizations • Tech is becoming easier to implement • Generational changes

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Companies are searching for solutions when they have grown frustrated with the capabilities of current systems.

Making the transition to the next-generation construction professional requires an understanding of the players and the playing field. The following are some fundamental building blocks for these considerations.

The New Hammer The tools for change that may have been cost prohibitive in the past are now readily available. These include 3-D laser scanners, 3-D printers, internetenabled printers, drones and Google Glass. While we will hear more about these jobsite accessories in the future, the most significant hardware drivers today are items that have matured and reached “hammer” status as construction tools: mobile devices. The computing power of phones and tablets has increased to the point where they are virtually as capable of performing most jobsite functions as well as a laptop. They even work in when there’s no internet!

According to an On Center survey, over 70 percent of construction professionals utilize some mobile device in the performance of their duties.

Construction analysts have seen increased usage of 35 percent year after year. The advent of 4G and LTE networks represented a shifting focus from delivering voice to delivering data. This infrastructure means that mobile devices can now become reliable sources of transmitting daily reports, plans, and photos, accessing cloud servers and conducting real-time conversations and asset tracking.

Today’s hardware and powerful networks have ostensibly converted the jobsite into an extension of the office.

The enabling element in this scenario is the cloud-based software platform connecting all sides of the communication channel through the mobile device. In a broader sense, this reflects the maturation of the Internet of Things in the construction industry.

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Selecting the Right Technology Understanding technology is critical to making informed selections as a next-generation construction professional. Licensed software, Software as a Service (SaaS) and cloud solutions all refer to different methods of delivery and software ownership. Specialized software exists for all phases of the construction process. These special packages are all available in varying formats.

It is crucial to understand what these formats are to make an appropriate decision that will solve the problems of a business.

SaaS and cloud computing are two terms that have grown to mean almost the same thing. Originally SaaS referred to any software that was accessed online and did not reside on a company’s servers. Cloud computing used to be the realm of software developers and IT departments that needed virtual computers/servers, data storage capacity and development environments.

However, software companies realized there was a massive market for applications delivered to everyone.

Scratchpads to iPads For purposes of this discussion, let’s assume that a current company is using Excel or paper. Also, consider that the company has reached a tipping point (e.g., losing crucial documents, lost time and money on projects, etc.) for many reasons. A construction professional with a working understanding of the options available can confront change from an enlightened standpoint. Your company should approach a technology move with the same methodology as a construction project: it must be broken down into parts. The process begins with a needs assessment.

Identify Company Pain Points Is data loss a problem? Has a server crashed?

• Is it necessary to deal with inputs and outputs from multiple departments? Consider a solution that provides information into a single document from multiple sources.

What are the mobile capabilities of these solutions?

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• How many solutions does a company need? Specialized programs exist to cover every aspect of the construction building cycle. Is takeoff and estimating enough? Is collaboration during the project necessary?

Most likely, you need all three but “Best of Breed” is the best choice.

Why, because they are the best at what they do. These must easily connect, though.

• What type of integration is necessary to connect department tools? A simple push and pull of a CSV flat file may suffice and eliminate duplicate data entry.

Time to Select a Solution Once a construction company has determined the type of technology needed, the selection process begins.

It is critical to demo any solution under consideration. Remember, you want technology that is designed for the construction subcontractor.

• Develop a checklist of features that address your company pain points (see #5). Use this in your evaluation.

• Does the vendor offer training and ongoing training?

• What does the implementation plan look like?

• What kind of support does the vendor offer?

• Is the vendor’s solution intuitive? It better be. Is it specifically designed for a subcontractor?

• Does the vendor offer more than one solution, enabling future growth?

• Is the vendor’s product based in professional construction experience offering business solutions? Or is it based in professional IT experience?

Ensuring Technology Adoption— Your Check List for Success!

No matter how cool the technology, or slick the vendor selling it, if you don’t mandate your office and field staff roll it out successfully, such as a case with a construction project, you’ll be left with an expensive bill. Below are proven steps to ensure a successful implementation.

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1. Define Objectives/Goals for Construction Software How will your team define the implementation project a success? Without clearly stating the desired objectives or goals of the technology implementation, the team will have no direction. Goals should be SMART: Specific, Measurable, Ambitious, Reachable, and Time-bound.

Examples of a goal for a daily report solution may be to increase field productivity by 25 percent within six months. For a project management or document control solution, the team may define his or her metric for success to ensure that correspondence or documentation does not stay open for more than seven to 10 days.

A clearly defined goal or objective will provide the team with a threshold to determine success.

2. Start with a Pilot Project Similar to the construction projects we work on day in and day out, implementation of construction technology should revolve around a similar project plan. A project manager will drive the implementation schedule and ensure that the team is hitting its milestones is critical. The beauty of construction technology is that a pilot team can implement the software on a smaller scale through a phased approach. Because technology implementations can be overwhelming, a “quick start” program will make the implementation more digestible. The pilot team will try, test, and tweak, the technology and process before wide-scale rollout.

Or, simply implement it with another project team on the next project with the pilot team providing guidance.

3. Executive and Employee Buy-In The members in the pilot program play the vital role of project champions. They will serve as the product experts and champion the benefits of the new solution to other employees. To get widespread adoption at the user level, employees must thoroughly understand the benefits that it provides directly to them.

While everyone wants to see the

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larger company successful, they do not want it to be at the expense of their own autonomy or increase their workload. Everyone wants to know “What’s in it for me?” With those benefits clearly defined, it will be smooth sailing toward receiving employee buy-in. Most of all, the support of leadership is instrumental to success. They serve as essential cheerleaders who can deliver incentives to ensure proper usage.

Their ability to be sympathetic to employees of this change as well as receptive to its feedback will ensure long-term adoption.

4. Thorough Training and Ongoing Customer Support Regardless of how intuitive or how easy a system is to use, comprehensive training by all team members is mandatory. The vendor and evaluation team need to work closely together to ensure that training is adequately covered within the implementation plan. Additionally, once the team is fully trained, it is important to determine the level of support that you will continue to receive from your vendor. Will your team be accountable for training new users or is this something your vendor can do? Some vendors provide unlimited training and support while some sell their training and support as packages. This is something to keep in mind when implementing a phased approach or when onboarding new employees.

5. Use Carrots or Sticks As the implementation period goes on, some of your team members may need some extra nudging to get on board. Similar to the mule that is having a hard time moving forward, do you provide a carrot as an incentive or spank with a stick as punishment? Some owners will dock the pay of the foreman if they do not utilize the new software, while others will provide an extra half hour of pay.

The awards must be meaningful to your team, or they will not provide the right incentive for adoption. Even the simple act of recognizing and

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acknowledging those who are going above and beyond in their usage or those that are helping others during the transition process will go a long way as a reward.

6. Feedback Loop The key to all adoption success is communication. Ensuring that the lines of communication are open for positive and negative feedback is critical throughout implementation and beyond. Why are those individuals just not using the new system? Learning more about the specific reasons will help to make any adjustments whether it is providing additional training or tweaks to the software. Employees are the key to a successful company, so a company must do all it can to take care of their employees. It is important that every person’s needs and their feedback be addressed for long-term adoption.

Making the change from an analog to a digital construction company requires careful consideration of your needs.

Once a construction company has taken steps to create a more technologically advanced operation, interfacing with a rapidly evolving jobsite, expectations for increased efficiencies will occur naturally.

Nothing worth having comes easy. And while construction technologies for the office and job site should be easy to use and implement, change is not easy. At the core of all the adoption tips is communication. Actively listening and communicating with your employees during this time of transition will be the most important thing one can do to ensure adoption.

Tyler Riddell is the vice president of marketing at eSUB Construction Software. He is responsible for driving market leadership, global awareness, demand generation, and strategic communications. With extensive experience in the construction industry, he often shares his insights in articles written for leading construction blogs and publications. He can be reached at (858) 2668322 or tylerr@esub.com.

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Feature OSHA Inspections and Defending Citations

by Julie A. Pace, The Cavanagh Law Firm Employers are subject to inspection for compliance with OSHA standards. Either federal OSHA or state OSHA programs conduct the inspections. Federal OSHA covers Indian lands and military. Construction companies generally work with compliance officers, but industrial hygienists are involved for silica testing or hearing testing.

OSHA may target particular employers for inspection: • due to their relatively high workplace injury and illness rates, • based on the particular industry in which they are engaged, • based on specific complaints about potentially unsafe conditions, • in response to a report of an accident or fatality at a worksite, or • simply as a routine programmed inspection.

OSHA also looks to the Dodge report for ongoing construction and will send inspectors. OSHA compliance officers will conduct an opening conference. The employer can ask to have the company’s safety manager come to the jobsite, and OSHA generally will wait for up to an hour, unless an imminent danger exists.

An employer has the right to require a search warrant. Most employers, however, believe that requiring OSHA to obtain a search warrant and to return later will cause the OSHA inspector to take a much harsher approach to the inspection.

Most companies try to work through the inspection in a cooperative manner. The company should have identified trained supervisors or safety manager in advance to accompany the OSHA compliance officer.

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Initial Investigation Usually the compliance officer requests a copy of the OSHA Form 300 log, which can identify hazards for the inspection. Compliance officers may take photographs and/or videotape during the inspection, and the company may want to do that as well so it has a record. Trade secret information should be addressed and restricted at the outset.

Because the compliance officer may identify alleged violations during the inspection, it is useful for the employer to have someone at hand to correct the alleged violations if it can be corrected on the spot. Immediate cooperation may persuade the compliance officer not to issue a citation or to issue less punitive citations.

A union representative has the right to attend the opening and closing conference of the inspection.

Employees have the right to speak to compliance officer privately.

Employee interviews are voluntary.

It is a good idea for the company to meet with employees prior to their interviews to explain the context of the interview and review safety training provided to the employees. Legal counsel can be present for interviews of supervisory positions (e.g., foreman or superintendents). OSHA may seek to tape record employee interviews, but companies generally do not consent to tape recording of supervisor interviews.

Closing Conference The compliance officer will conduct a closing conference at the end of the inspection. Avoid making admissions during the inspection. The employer

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should take notes of comments made by the compliance officer. The employer should keep copies of documents provided to the compliance officer. The employer should also note whether employees interviewed spoke in a foreign language and identify contact information of translators.

The company’s designated OSHA walkaround representative should prepare a written report. Companies may think an inspection has gone well, only to be surprised months later when they receive a citation.

Comments made during the inspection by the compliance officers may be helpful in defending any citation(s) issued. A timely prepared report is helpful.

OSHA Citations Contents of Citation Employers must post a citation near the place of the violation. Citations contain: 1. a particular description of the violation, including the standard or regulation allegedly violated: if issued under the general duty clause, the citation must be based upon specific evidence that the employer had actual or constructive knowledge of a hazard and intentionally disregarded or was indifferent to employee’s health or safety; 2. a reasonable time period for correcting the violation; 3. notice to the employer that it may request a hearing to contest the citation;

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4. the required corrective measures with particularity so that the employer will know the exact nature of the condition that is allegedly a violation and the exact steps necessary to eliminate the hazard. Spelling out the violation allows the employer to evaluate whether to contest the citation and helps avoid the possibility that future violations are deemed willful or repeat violations; and 5. it does not constitute a finding that the employer violated OSHA unless the employer fails to contest the citation.

Penalties and Fines for Violations For 2018, the fine schedule is up to: 1. $129,336 per violation for willful or repeat serious violations; 2. additional $25,000 for willful or repeated violations resulting in death or permanent disability; 3. $12,934 for a serious violation or non-serious citation or failing to post citation; and 4. $12,934 per day during the time that the violation continues after abatement should have occurred.

One way to prevent a repeat citation, of course, is to contest and defeat the first citation. Criminal willful violations also can be issued.

OSHA citations can be significantly detrimental to companies for additional reasons such as: 1. If someone other than the company’s own employee is injured, an OSHA citation may be used against the company in personal injury lawsuits. Even if the OSHA citation was not due to the same hazard that caused the accident, a jury could conclude the company was at fault because of the OSHA citation. Workers’ compensation can be the exclusive remedy between the injured worker and the company. For general contractors, however, they can get

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sued separately if not an additional insured under a subcontractor’s policy; 2. A record of OSHA citations may cause a company to lose bids or prospective contracts for government work; 3. OSHA citations adversely impact the company’s public image or reputation; or 4. Union organizers may use OSHA citations against the company.

Contesting Citations/Defenses Isolated Incident or Employee Misconduct One of the most common OSHA citations defenses is referred to as the isolated occurrence or the employee misconduct defense and requires showing that employer: 1. had an established work rule to prevent the violation, and 2. adequately communicated the rule to its employees, and 3. took reasonable steps to discover the violation, and 4. enforced work rule when violated.

All of the elements must be shown.

So, for example, even if an employer has a safety rule that adequately addresses a particular safety standard, if needs to show enforcement.

Additional Defenses Superintendents for general contractors must make regular and frequent inspections, not walk away from safety violations, and have an overall good safety program.

Evidence of the following can provide additional defenses: 1. following the standard as interpreted by OSHA would subject an employee to a greater hazard; 2. compliance with the standard was not technically feasible; 3. technical or procedural barriers to compliance; 4. violation of due process; or 5. exemption from coverage.

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Settlement of Citations OSHA encourages informal settlement conferences. If an informal settlement is not reached, it is imperative that the company must preserve its rights by submitting a notice of contest of the citation within 15 days.

Settlement generally is still be an option even if a company does not participate in the informal settlement conference.

A good practice is to obtain a copy of the OSHA file before the settlement conference so companies can prepare and have a meaningful and accurate discussion to try and resolve the matter. Because of the time it takes to obtain the OSHA file, many times the settlement discussion occurs after the 15 days so the notice of contest is filed.

During settlement, OSHA may amend or reclassify the citation from serious to non-serious, reduce penalty, or withdraw a citation. Many times settlement may include enhancements with the company agreeing to take actions that improve safety within the company cited or among the industry. These enhancements help leverage OSHA safety for a greater impact.

Formal Hearings OSHA citations are contested at formal hearings. Employers must submit a written request to contest and seek a hearing within 15 days after receiving the citation, or it becomes final. The 15 days to contest is absolute, regardless of whether the employer missed the deadline due to inadvertence.

The parties can request a pre-hearing conference to simplify issues, reach agreements regarding the admissibility of certain facts, identify number of witnesses, and handle any other matters. The pre-hearing conference can be a useful device for learning information about the nature of the allegations against the employer and pinning down the agency to

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a particular theory of the alleged violation.

If authorized by the Tribunal, an employer may file motions to dismiss or motions for summary judgment.

The parties may exchange discovery, including depositions, interrogatories and requests for production of documents. Discovery is another useful technique for committing OSHA to specific facts and theories upon which the citation is based. Other times, it may be most efficient to go to the hearing without much formal discovery. The company must decide whether a safety or technical expert is needed.

At the hearing, the employer should make use of any notes, photographs, etc. Sometimes OSHA issues a citation regarding the same

matter the compliance officer was complimentary so this is helpful in cross-examination.

If the Tribunal allows, the parties may submit proposed findings of fact, conclusions of law, and supporting rules and cases. A decision of the Tribunal can be appealed to an OSHA Review Board. The decision of the Review Board may be appealed.

Julie A. Pace is a senior member with The Cavanagh Law Firm, Phoenix, Ariz. Pace concentrates her practice in the fields of employment law, immigration compliance, OSHA, health care, and construction. She defends claims of sexual harassment, employment discrimination, retaliation, whistleblower, and wrongful discharge, and against charges by the

EEOC and ACRD. She handles matters involving OSHA, ICE, OFCCP, DOL, NLRB, Davis-Bacon, FAR, ADA, FMLA, and wage and hour laws, audits and issues. Pace also handles issues involving the Affordable Care Act and addresses the changes and options it presents to companies.

Her Davis-Bacon and prevailing wage practice includes counseling and training on state and federal prevailing wages and benefits requirements, coverage and applicability of prevailing wage laws, coverage exemptions, worker classification and pay issues, addressing wage determinations, wage surveys, and representation of employers before the Department of Labor Wage and Hour Division and similar state agencies. She can be reached at (602) 322-4046 or jpace@ cavanaghlaw.com.

2018 ASA CERTIFICATE OF EXCELLENCE IN ETHICS ASA will honor selected firms that demonstrate the highest standards of internal and external integrity during an awards ceremony at the ASA annual convention, SUBExcel 2019, March 6–9, 2019, in Nashville, Tennessee.

Online Resources: • Watch the Video.

• Download the 2018 ASA Certificate of Excellence in Ethics Brochure.

• Download the 2018 ASA Certificate of Excellence in Ethics Application.

• ASA provides useful model documents to help with your submission and your ethics program. View the 2018 ASA Certificate of Excellence in Ethics Resource Guide.

• Download the 2018 ASA Certificate of Excellence in Ethics Timeline.

• ASA’s Certificate of Excellence in Ethics Program Q&A LinkedIn Group—a forum for getting answers to your questions about the application process. This forum includes current recipients who have been through the application process and who are willing to help guide new applicants through their application process.

• Recipients of the ‘2017 ASA Excellence in Ethics Award’ may re-apply for the 2018 ASA Certificate of Excellence in Ethics using the Re-Certification Form.

• Learn more about this award from asaonline.com.

APPLICATION DEADLINE: DECEMBER 7, 2018 T H E

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Legally Speaking

OSHA Compliance Tips on Multi-Employer Work Sites and Joint-Employer Relationships

by Ross A. Boden, Sandberg, Phoenix & von Gontard, P.C. Subcontractors must remain cognizant of OSHA’s continued enforcement focus on multi-employer job sites and joint-employer relationships. At current penalty rates of $12,934 per violation or $129,336 for willful violations, citations carry significant consequences.

This article summarizes the responsibilities you need to know with examples and practice tips to help you escape your next OSHA inspection without a dreaded citation.

OSHA’s Multi-Employer Citation Policy, Examples, and Practice Tips Under OSHA’s multi-employer citation policy, more than one employer may be cited for a violating condition. OSHA’s multi-employer policy identifies four types of employers who may be cited: Creating Employer: The employer that caused a hazardous condition that violates an OSHA standard. Under this definition, it does not matter whose employees were exposed to the hazard. Creating employers can be cited even if none of its own employees were exposed to the hazard, which is consistent with all employers’ duty not to create hazardous conditions.

Example: While operating a crane on a job site, XYZ Subcontractor damages guardrails that were installed as fall protection in a currently vacant part of the job site. The extent of the damage

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is unclear, and XYZ Subcontractor does not have access to that area of the job site. Although no employees of XYZ Subcontractor or any other contractor are present, XYZ Subcontractor is potentially citable. However, XYZ Subcontractor should be able to avoid citation if it immediately notifies the general contractor (preferably verbally and in writing) and prevents its employees and other contractors’ employees from accessing that area of the job site until the damage can be assessed and corrected.

Practice Tip: Educating your employees through continual training goes a long way. Your employees should be well-trained to identify actual or potential hazards and report the hazard immediately to their supervisor, safety manager, and general contractor. Your safety manager (or whoever fulfills this role at your company) should then coordinate with the general contractor to prevent access to the area until the hazard is corrected.

Exposing Employer: An employer whose own employees are exposed (or even potentially exposed) to the hazard. Under this definition, the focus is protecting your employees regardless of who caused the hazard. Exposing employers are citable for (a) known hazards or unknown hazards that would have been discovered with reasonable diligence or (b) failing to protect its employees. Even if the exposing

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employer does not have authority to correct the hazard, the employer can be cited if it does not: (i) request the creating/controlling employer to correct the hazard; (ii) inform its employees of the hazard; and (iii) take reasonable alternative protective measures. In cases of imminent danger, employees must be removed from the job site.

Example: XYZ Subcontractor’s employees are using an elevated ramp to access their work area. The guardrails of the access ramp are dangerously loose. XYZ Subcontractor discovered the condition by inspecting and testing the guardrails. XYZ Subcontractor does not have authority to fix the guardrail, but it notified the general contractor verbally and by email. In the meantime, XYZ Subcontractor called an employee meeting immediately, informed its employees of the hazard, and instructed them to use an alternate access ramp until further notice. XYZ Subcontractor should avoid citation here.

Practice Tip: Remain vigilant at all times for potential hazards and train your employees to do the same, especially on job sites where ingress and egress routes create potential hazards.

Instruct your employees to notify you immediately of the hazard and avoid it until you can take appropriate action.

When a hazard is identified, immediately notify and safeguard your employees. Then, immediately notify the

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general contractor verbally and follow up with email confirmation documenting the call.

Correcting Employer: OSHA defines a correcting employer as an employer who is engaged in a common undertaking on the same worksite as the exposing employer and is responsible for correcting a hazard. In plain English, a correcting employer is the employer with authority or responsibility to fix the hazard. Correcting employers have a duty to prevent, discover, and correct hazards. In this scenario, OSHA is generally looking for an employer whose scope of work includes installing or maintaining safety equipment or devices.

Example: XYZ Subcontractor was hired to excavate a trench greater than 5-feet deep, so a protective system was required and shoring was selected as the appropriate system. Installing and maintaining the protective system is part of XYZ Subcontractor’s scope of work under its contract. While working in the trench, other contractors’ employees cause damage to the shoring. Nobody notifies XYZ Subcontractor of the damage. The hazard goes unnoticed for several days, and OSHA shows up for an inspection. Even though XYZ Subcontractor did not create the hazard, XYZ Subcontractor may get a citation for failing to discover and correct the hazard. The other contractors may also be cited as creating or exposing employers.

Practice Tip: Be proactive and do not rely on other contractors to inform you of damage. If you have exclusive or joint authority to control the safety equipment at issue, periodically inspect and test the safety equipment with a frequency that is appropriate under the circumstances. In some scenarios, a daily inspection may suffice based on the size of the project and amount of activity in the area. Other scenarios may require multiple inspections per day. Track and document your inspections. If you spot an issue, immediately notify the other contractors verbally and in writing to avoid the area until the hazard is corrected.

Controlling Employer: An employer who has general supervisory authority over the worksite, including the power

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to correct safety and health violations itself or require others to correct them.

Of course this is typically the general contractor and/or construction manager. Controlling employer status can be established in many different ways, often by contract but also by the exercise of control. Controlling employers have a duty to detect violations, implement correction systems, and enforce safety compliance.

Example: GC Construction is general contractor for the construction of a new warehouse. XYZ Electric is the electrical subcontractor. XYZ Electric does extensive and regular safety training and has an impeccable safety record. GC Construction has a poor safety record.

XYZ Electric fails to connect a grounding wire inside an electric panel box. GC Construction inspects the site, does not detect the hazard, but receives assurance from XYZ Electric that the equipment is safely installed. XYZ Electric could be cited in this scenario, and if XYZ Electric agreed to indemnify GC Construction for citations within its scope of work, XYZ Electric could face an even steeper penalty due to GC Construction’s poor safety record.

Practice Tip: Contract language is important here. Indemnification provisions for OSHA citations within a subcontractor’s scope of work are fairly common. However, insist on a provision that explicitly excludes any liability for increased penalties due to the general contractor’s prior citations or poor safety record.

Joint-Employer Considerations and Practice Tips Since the Temporary Worker Initiative was announced in 2013, OSHA has increased enforcement against jointemployers for deficiencies in protecting temporary workers. The purpose of the initiative is to protect temporary workers who are more likely to perform dangerous jobs, have limited English proficiency, and not receive necessary training. The initiative is designed to impose obligations on both the host employer and staffing agency to protect temporary workers. Given that OSHA recently released two more bulletins on the initiative, the increased enforcement is likely to continue for the foreseeable future.

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When hiring temporary workers, communication between the host employer and staffing agency is critical to preventing citations. For the host employer, the focus should be on identifying sitespecific hazards, safety equipment, and training necessary to protect the temporary workers who may not be familiar with the job site. OSHA permits host employers and staffing agencies to divide these responsibilities, but again, communication is key to making sure there are no misunderstandings. Best practices for subcontractors include a written contract that (1) describes each side’s responsibilities; (2) requires the staffing agency to conduct safety training (which should be in addition to any safety training you provide); and (3) includes an indemnity provision stating the staffing agency will indemnify, defend, and hold harmless the subcontractor for any citations attributable to the staffing agency’s acts or omissions.

Possible Changes to Watch For The definition of a joint-employer has been a moving target in recent years.

The National Labor Relations Board has grabbed most of the headlines on this issue with its well-publicized struggles to define employer-employee relationships for purposes of worker misclassification. The definition has expanded and contracted several times in the last three years and was recently expanded in February 2018, suggesting that even the unexercised potential to control working conditions may establish a joint-employer relationship. If the NLRB adopts a firm definition or if new laws are enacted to solidify a definition, it may impact OSHA’s multi-employer and joint-employer guidelines.

Ross A. Boden is an attorney in the Kansas City office of Sandberg, Phoenix & von Gontard, P.C., and focuses his practice in the areas of construction and employment litigation across Kansas and Missouri. Please do not hesitate to contact Ross for more information.

He can be reached at (816) 627-5536 or rboden@sandbergphoenix.com. You can follow Sandberg Phoenix’s construction litigation blog at www.sandbergphoenix.com/construction-litigation/blog/.

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ASA/FASA Calendar

Coming Up in the October 2018 Issue of ASA’s

October 2018 9 — Webinar: “Group Captive Insurance for Construction Companies“ presented by Ed Kushlis, Insurance Associates

13 — Webinar: “The Soft Side of Scheduling: Improving Communications Between GCs and Subcontractors” presented by Steve Groth, Chiaramonte Construction December 2018

THE

November 2018

Theme: Human Resources

11 — Webinar: “Improving the Change Order Process” presented by Ron Churchey, Shapiro & Duncan

• The Skilled Trade Shortage and What You Can Do to Recruit Labor

January 2019 8 — Webinar: “Work-In-Progress Reporting” presented by Stephen Blankenship, Ennis Electric

• The Evolution of the ‘Talent Director’ in Today’s Construction Organizations

February 2019 12 — Webinar: “The Best—and Worst—Construction Legal Decisions of 2018” presented by Adam Harrison, Harrison Law Group

• Culture and Project Delivery Success and Safety

March 2019 6–9 — SUBExcel 2019, Nashville, Tenn.

• The Disaster Artist—What Drives Failing Businesses at Their Peak

19 — Webinar: “Lean Construction—What Subcontractors Need to Know” presented by Lean Construction Institute

• Recruiting Top Tier Talent • The Challenges of Finding and Developing Talent

April 2019 9 – Webinar: “Avoiding Predatory OCIPs, CCIPs and Builders Risk Insurance Flow-Downs” presented by Jonathan Mitz, Ennis Elecric

• Wearables at Work • Medical Marijuana in the Workplace

May 2019 14 — Webinar: Corporate and Individual Tax Planning Under the New Tax Law, by Thomas B. Bailey, CPA, CVA, Councilor, Buchanan & Mitchell, P.C.

• Importance of Background Checking and Drug Testing

June 2019

• Form I-9s

11 – Webinar: “A Small Business’ Guide to Human Resources” presented

by Jamie Hasty, SESCO Management Consultants

• Legally Speaking: Davis-Bacon Audits

July 2019 9 – Webinar: “Emerging Technologies—Smart Tools, UAVs and Others— and How They Relate to the Internet of Things” presented by Maxim Consulting Group August 2019 13 – Webinar: “Trade Shortage” presented by Michael Brewer, The Brewer Companies

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Look for your issue in October.

PAST ISSUES: Access online at www.contractors knowledgedepot.com

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To learn how CNA’s insurance programs for contractors can help your business grow more profitably, contact your independent agent or visit www.cna.com/construction.

The examples provided in this material are for illustrative purposes only and any similarity to actual individuals, entities, places or situations is unintentional and purely coincidental. Please remember that only the relevant insurance policy can provide the actual terms, coverages, amounts, conditions and exclusions for an insured. All products and services may not be available in all states and may be subject to change without notice. “CNA” is a service mark registered by CNA Financial Corporation with the United States Patent and Trademark Office.

Certain CNA Financial Corporation subsidiaries use the “CNA” service mark in connection with insurance underwriting and claims activities. Copyright © 2018 CNA. All rights reserved.

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