The Contractor's Compass - September 2019

THE

FASA’s THE OFFICIAL EDUCATIONAL JOURNAL OF THE AMERICAN SUBCONTRACTORS ASSOCIATION WWW.ASAONLINE.COM

5 Tips for Connecting Field to Office: What is the Best Strategy?

by Jeff Burmeister, Director, Subcontractor Network for Kahua

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

SEPTEMBER 2019

Safety Is #1: Why & How

by Gregg Schoppman, Principal, FMI Corporation

Looking to Improve Safety Culture?

Have Management that Commits

by Dave Galbraith, AVP of risk management, technical lead, for Amerisure Insurance

Sidewall Protection for OTR Tires Keeps Concrete Recycling Operations Running

by Bob Welker, International Marketing Director, Argonics

Safety First: Prioritizing Workplace Safety for Subcontractors

by Patrick Hogan, CEO, Handle

LEGALLY SPEAKING: But We Did Everything Right!

Challenging OSHA Citations with the Unpreventable Employee Misconduct Defense

by Jonathan Landesman, Michael MetzTopodas, and Christopher W. Sexton

CONSTRUCTION IN THE COURTS: ASA SLDF WINS BIG FOR OHIO

by R. Russell O’Rourke, Esq. Meyers, Roman, Friedberg & Lewis

SAVE THE DATE

MARCH 4–7 American Subcontractors Association, Inc.

American Subcontractors Association 1004 Duke Street, Alexandria, VA 22314 (703) 684-3450 | www.asaonline.com communications@asa-hq.com

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FASA’s THE

September 2019

F E AT U R E S 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.

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).

5 Tips for Connecting Field to Office:.................................................................................9 What is the Best Strategy?

by Jeff Burmeister, Director, Subcontractor Network for Kahua

How Are We Doing?.................................................................................................................... 11 Developing a Firm-Wide Obsession with Customer Feedback

by Gregg Schoppman, Principal, FMI Corporation

MISSION FASA was established in 1987 as a 501(c)(3) tax-exempt 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.

FASA BOARD OF DIRECTORS Richard Wanner, President Courtney Little Richard Bright Anthony Brooks Brian Cooper Jack Austhof SUBSCRIPTIONS The Contractor’s Compass is a free monthly publication for ASA members and nonmembers. For questions about subscribing, please contact communications@asa-hq.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 full-length 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.

LAYOUT Angela M Roe angelamroe@gmail.com © 2019 Foundation of the American Subcontractors Association, Inc.

Looking to Improve Safety Culture?.................................................................................. 14 Have Management that Commits

by Dave Galbraith, AVP of risk management, technical lead, for Amerisure Insurance

Sidewall Protection for OTR Tires Keeps Concrete................................................... 17 Recycling Operations Running

by Bob Welker, International Marketing Director, Argonics

Safety First: Prioritizing Workplace Safety for Subcontractors............................ 18

by Patrick Hogan, CEO, Handle

D E PA R T M E N T S ASA PRESIDENT’S LETTER....................................................................................................4 CONTRACTOR COMMUNITY................................................................................................5 LEGALLY SPEAKING: But We Did Everything Right!.................................................7

Challenging OSHA Citations with the Unpreventable Employee Misconduct Defense by Jonathan Landesman, Michael Metz-Topodas, and Christopher W. Sexton

CONSTRUCTION IN THE COURTS:................................................................................20 ASA SLDF WINS BIG FOR OHIO

by R. Russell O’Rourke, Esq., Partner – Chair, Construction Law Practice Group Meyers, Roman, Friedberg & Lewis .

QUICK REFERENCE COMPLIMENTARY WEBINARS.......................................................................................... 22 COMING UP.................................................................................................................................. 22

PRESIDENT ’S LE T TER Dear ASA Members: I hope that each and every one of you are having a beautiful September. The leaves are getting ready to fill the landscape with excitingly vibrant colors, and I am excited for all of the hard work that all of you are doing within the subcontracting community. Together we are strengthening our industry every day, and we all should be invigorated for the future.

There are exciting activities on the horizon here at the American Subcontractors Association. Later this month we will have our Fall Board Meeting in Washington D.C. We will be discussing many issues important to the future of ASA, and I’m looking forward to meeting and discussing topics important to you in our nation’s capital as our organization continues to grow!

In addition, the Executive Board will be meeting with the Associated General Contractors of America (AGC) Executive Board to continue the work of improving the relationship between subcontractors and prime contractors. As we all know, this partnership is vital to the subcontracting industry, and will continue to be at the forefront of the work we are doing here at ASA. I am proud of the work our chapters have been doing, including multiple initiatives from coast to coast. Our Subcontractors Legal Defense Fund has been supporting crucial efforts such as legislative victories in Ohio, and the continued support of the Miller Act, which help ensure protections for subcontractors. I encourage all of you to remain vigilant in the fight for the needs of subcontractors. Our industry needs you!

Looking forward, we are less than six months away from SUBExcel!

Keep March 4-7, 2020 in Las Vegas on your calendars, where we will all not only gather together to celebrate all of the successes we have had, but also dig deep to prepare for the successes of the future.

I look forward to seeing those of you who will be in Washington DC soon, and will see the rest of you in the months to come. The American Subcontractor’s Association is at it’s best when we stand together.

Sincerely, Anthony Brooks ASA President

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OSHA Silica RFI OSHA is requesting information on the effectiveness of engineering and work practice control methods not currently included for the tasks and equipment listed on Table 1 of the Respirable Crystalline Silica standard for construction. The agency is also requesting information on tasks and equipment involving exposure to respirable crystalline silica that are not currently listed on Table 1, along with information on the effectiveness of engineering and work practice control methods in limiting worker exposure to respirable crystalline silica when performing those tasks.

Finally, OSHA is requesting information and comment on whether there are additional circumstances where it would be appropriate to permit employers covered by the Respirable Crystalline Silica standards for general industry and maritime to comply with the silica standard for construction.

This Request for Information (RFI) requests comment and information, including exposure data, which could

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assist the agency in assessing whether revisions to the standards may be appropriate. Comments are due on or before October 15, 2019.

A New Beryllium Rule Proposal OSHA sent the Office of Management and Budget (OMB) a new proposal, not published previously, along with a final beryllium rule on exposure in construction and shipyards. The rule requires employers to monitor exposed employees, to provide personal protective equipment, and to follow certain housekeeping rules, among other provisions. The metal is widely used by defense, aerospace and medical supply manufacturers, and exposure can cause lung disease and cancer. The agency finished accepting public comments on whether it should roll back construction and shipyard protections in August 2017, and is due to publish the final rule in December, per the latest regulatory agenda.

OSHA said in the proposed rule that the rollback was justified because beryllium exposure was limited in the

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construction and shipyard sectors to a narrow range of work such as abrasive blasting and welding, and that preexisting standards already covered those operations, but OSHA also sought comment on whether it should retain some or all of the ancillary protections.

Federal construction safety regulators should continue with plans to revise rules protecting workers from toxic beryllium dust, an OSHA advisory committee agreed Sept. 9.

OSHA announced on September 4 that it wanted to change direction and clarify, rather than eliminate, additional requirements for regulating exposure to beryllium. By law, the advisory committee is required to review proposed construction rule changes.

Women in Construction Continues to Grow Per the SmartAsset study regarding the 25 fastest growing job categories for women, “more women are working in traditionally male-dominated fields such as construction and engineering.”

The study, which used data from the

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US Bureau of Labor Statistics from 2014-2018, illustrated female laborers in construction ranked second out of 25 positions outlined with an 85% uptick.

Apprenticeship Rule Update The Labor Department’s recent apprenticeship proposed rule has received more than 300,000 comments, and of greatest concern in construction is an exemption from the proposed Industry-Recognized Apprenticeship Programs, which would assume much of the responsibility for setting standards.

Workplace Fatigue in Focus Safety and Health Magazine outlined the risks of workplace fatigue, which experts believe causes more than 1 in 10 injuries on the job. Emily Whitcomb, senior program manager at the National Safety Council, stated that “chronic fatigue is more than just a quality-oflife issue. It’s estimated that about 13% of workplace injuries can be attributed to employees with sleep problems, and 21% of fatal crashes may involve a drowsy driver.” Recommended steps for employers to take to tackle this issue includes: • Establishing a fatigue risk management system

• Providing education and screening • Focusing on worker schedules • Addressing environmental stresses The article provides a deep dive into the issue of workplace fatigue, including warning signs that an employee is sleep deprived, and tips for balancing a healthy sleep schedule with work.

To read the entire article, click here.

OSHA Releases Preliminary Top 10 Workplace Violations List for 2019 The Occupational Safety and Health Administration’s (OSHA) released a preliminary list of most frequent cited workplace violations for the year. In conjunction with the National Safety

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Council, OSHA revealed the “Top 10 Workplace Safety Violations for 2019.”

For the ninth consecutive year, “Fall Protection - General Requirements” topped the list with 6,010 incident reports. The finalized list, along with a more in-depth look at the Top 10 violations for 2019 will be published in December.

The preliminary Top 10 is as follows: (Hazard - Number of Reported Incidents)

• Fall Protection, General Requirements — 6,010 • Hazard Communication—3,671 • Scaffolding—2,813 • Lockout/Tagout—2, 606 • Respiratory Protection—2,450 • Ladders—2,345 • Powered Industrial Trucks—2,093 • Fall Protection, Training Requirements—1,773 • Machine Guarding—1,743 • Eye and Face Protection—1,411

Are You Working To Engage Young People in the Trades?

Tell ASA About It!

We want to hear from you! Tell us how you are working to engage young people and new employees in the trades. Are you working with programs like Helmets to Hardhats? Does your company have a partnership with a local community college, university or apprenticeship program?? How do you connect with your local community?

The American Subcontractors Association is currently working to gather all of your amazing ideas to be able to share with other ASA chapters around the country. Let us know how you reach out to young, new talent, as well as your best practices in each initiative.

Have something exciting to share? Email us your ideas at communications@asa-hq.com. We can’t wait to hear from you!

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Misclassifying Workers Doesn’t Violate Labor Law, NLRB Says In an August 29th ruling, the National Labor Relations Board (NLRB) determined that employers do not violate federal law by misclassifying their workers as independent contractors instead of employees. The NLRB reversed a judge’s earlier ruling that Velox Express, Inc. unlawfully interfered with its workers’ rights under the National Labor Relations Act (NLRA) by wrongly telling its drivers that they are independent contractors.

Unlike employees, contractors have no rights under the NLRA to form unions or engage in other protected actions. The decision effectively removes the NLRB from future legal battles involving purely misclassification issues.

Whether workers are employees with rights and protections under state and federal laws can have enormous consequences for companies and workers. The board majority argued that an employer’s communication of its position that workers are independent contractors does not in and of itself carry the implication that union organization or other protected activities are disallowed. The dissenting opinion was that the decision tells workers they have no rights under the NLRA and that the Board was inappropriately focused on the rights of employers over those of the workers.

The case garnered a great deal of national attention, with 28 outside parties submitting briefs weighing in on the implications. Industry associations and employers argued that the misclassification alone should not be unlawful because it would disrupt the use of contractors and punish honest mistakes. Unions and worker advocates stated that the practice interferes with the right to collective actions.

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L E G A L LY S P E A K I N G But We Did Everything Right!

Challenging OSHA Citations with the Unpreventable Employee Misconduct Defense

by Jonathan Landesman, Michael Metz-Topodas, and Christopher W. Sexton Despite the construction industry’s few areas of certainty, contractors can invariably count on facing an OSHA compliance inspection at some point.

These visits are meant to ensure everyone on site is complying with OSHA’s many and detailed construction-related standards and regulations. When these inspections reveal noncompliance, contractors often end up receiving citations for violations, sometimes with costly fines.

Construction companies fend off the risk of citations and fines by having robust safety programs covering all areas of job performance. But what happens when, despite an employer taking all reasonable measures to run a safe job site, OSHA still finds violations and issues citations? What happens when a careless or reckless employee ignores company safety policies and training? Should the employer be liable? Would an OSHA citation be warranted? Courts interpreting OSHA regulations say: “Not always.” The Unpreventable Employee Misconduct Defense (UEM Defense) is an effective tool for safety-conscious contractors whose employees’ errant conduct results in citations and fines.

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The OSHA Citation Process

The UEM Defense

The OSHA citation process begins with an OSHA compliance officer arriving on-site to perform an inspection, usually triggered by a complaint or an incident involving an injury or fatality. The officer is required to limit the job site review to locations relevant to the inspection’s purpose. For example, an inspection responding to a complaint of inadequate fall protection could look at elevated areas, but not, say, silica levels at demolition locations. Contractors may, and often do, have their counsel present during such inspections, or at least consult their attorney as soon as they learn of the inspection.

When a compliance officer finds violations and issues citations with fines, the cited contractor can seek to negotiate a resolution with OSHA, but has only fifteen days to do so. Failing a satisfactory settlement, a contractor may submit a notice of contest to the citation, which moves the process into a formal proceeding, much like a litigation.

During this process, a contractor can formally raise the UEM Defense. Contractors usually negotiate settlements, contest citations, and raise the UEM Defense through their counsel.

When raising the UEM Defense, a contractor argues that it took all reasonably possible measures to prevent the conduct cited and does not deserve the citation and fine. This defense arises out of the legal premise that a contractor should not have strict liability for OSH Act violations.

Like many other legal principles, the UEM Defense has several elements which the cited contractor bears the burden of proving. Specifically, a contractor must show it:

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1. Established a work rule to prevent the cited violation and/or unsafe behavior or conditions from occurring (policy) 2. Adequately communicated the rule to employees (communication) 3. Took steps to discover noncompliance (monitoring) 4. Effectively enforced the rule whenever employees transgressed it (enforcement)

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Evidence Required and Advance Measures To satisfy these elements, contractors need the right kind of evidence, which requires taking appropriate action well before receiving an OSHA citation — after is too late. Remember the old saying: “By failing to prepare, you are preparing to fail.”1 The following specific types of evidence support each element.

POLICY—A contractor meets this element by showing written safety policies and practices—both company-wide and job-specific—that match or exceed what the OSHA standard referenced in the citation requires. For example, for a roofer to meet this element, it should:

• Have a written safety manual and safety policies that align with or even mimic OSHA’s fall protection standards

• Have a written safety plan for each job, including a fall protection plan if necessary

• Hire someone with fall protection

expertise to serve as a safety manager or as the designated person responsible for company-wide safety

• Supply and provide all necessary safety equipment, such as harnesses and lifelines

COMMUNICATION — Written policies, however, provide no defense unless the company communicates them to its workers by explaining not only rules and policies, but also how they apply to common job-site situations. So, for example, a roofing subcontractor should: • Make safety certification an employment requirement, including OSHA-10 for laborers and OSHA-30 for foreman and supervisors

• Require comprehensive training in

company safety policies, including fall protection training that meets OSHA standards, for on-boarding new hires

• Conduct job-specific safety training for

each project with attention to the site’s unique fall hazards

• Have morning toolbox talks on relevant safety topics, including demonstrations of relevant job site fall protection equipment

• Hold safety discussions at daily job

meetings that identify particular fall hazards for the day’s work

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• Make sure safety training includes

assessment, that is a way to measure participants’ understanding, such as by requiring trainees to demonstrate using fall protection equipment properly

MONITORING—A company must also perform daily or near-daily job site supervision and inspection to identify safety hazards and ensure workers comply with company safety policies. For the roofing subcontractor, advance measures include

• Direct supervisors and foremen to

observe project activity regularly with attention to safety compliance, including following fall protection standards

• Send a safety or project manager to the job site to conduct unannounced safety inspections

• Hire a third-party safety consultant

specializing in fall protection compliance to perform a safety audit or mock OSHA inspection

ENFORCEMENT—Meeting the final element means having an actual, progressive, and consistent enforcement program for safety policies. In an “actual” program, the employer enforces safety rules and disciplines violators, unlike policies that exist only on paper or have no teeth. A safety policy should also include progressive disciplinary measures with harsher consequences for repeated offenses or more serious violations.

Finally, a program must have consistent enforcement. The same consequences must apply for similar violations for any employee disciplined—whether a newly hired laborer or the company’s top project manager. Here are ways to execute these guidelines:

• Record all safety policy infractions and the consequences to the employee

• Position the project so that it can

succeed even if the company has to subject its best worker on the job to discipline In carrying out these measures, contractors should also keep in mind one essential guideline—document everything! As the popular adage goes, “In OSHA’s mind, if it’s not documented, it didn’t happen!” To help preserve the record for a successful UEM Defense, contractors should create and update consistently throughout every project

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the following documents: job safety plan, sign-in sheets for safety trainings and job site safety meetings, daily logs with notations regarding safety issues (including any informal safety-related communications), and correspondence regarding any disciplinary action for safety rules violations. As much as possible, such documentation should cover all of the above types of evidence.

Drawing on the above examples, a contractor can present sufficient evidence to support all four elements. Once it does, OSHA bears the burden to refute that evidence. If OSHA cannot successfully do so, the contractor should prevail.

Conclusion Contractors should implement the above policies, programs, and practices to ensure they can deploy the UEM Defense when confronting an OSHA citation and fine resulting from an employee’s rogue conduct. These measures also promote overall job site safety for all workers.

Even with these measures, the UEM Defense’s protection is not guaranteed. No two OSHA citation cases involve identical circumstances, and asserting the defense requires knowing both the underlying facts and how they fit with the defense’s legal requirements. Contractors facing actual OSHA citations and fines should consult with legal counsel well-versed in the UEM Defense and OSHA citation cases.

Jonathan Landesman is Co-Chair of Cohen Seglias’s Labor & Employment Group, and he has represented employers in OSHA matters for 20 years. He can be reached at jlandesman@cohenseglias. com or 267.238.4726.

Michael Metz-Topodas is an associate at Cohen Seglias, where he focuses his practice on construction law and construction litigation, including counseling clients on OSHA compliance and workplace safety. He can be reached at mmt@cohenseglias.com or 267.238.4755.

Christopher W. Sexton is an associate in the Construction Group of Cohen Seglias. He can be reached at csexton@ cohenseglias.com or 267.238.4710.

1Widely

attributed to Benjamin Franklin.

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F E AT U R E 5 Tips for Connecting Field to Office: What is the Best Strategy?

by Jeff Burmeister, Director, Subcontractor Network for Kahua The construction industry accounts for 6 - 13% of global GDP. The work you do as a subcontractor provides the accommodations and infrastructure that determine how we live, work and play.

Subcontractors today are faced with a growing number of technology solutions. From point solutions designated to solving specific issues related to design

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or bidding, to innovations in technologies like 3D scanning & printing, BIM (Building Information Modeling), IoT (Internet of Things), and drones, and even full enterprise project management systems and data sharing solutions, there are a host of emerging technologies that are reaching maturity and stand to deliver significant value in the industry.

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Unfortunately, the overwhelming availability of tools for the field and tools for the office can also leave subcontractors feeling overloaded, which ultimately leads most of them to choose nothing. With so many challenges that need solving in the industry, how do you identify the best tools for your company?

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Connect Field to Office We all know communicating between the field and the office is a challenge. And yet, breaking down departmental silos and making sure your field and office are on the same team improves efficiency and reduces risk to allow you to profitably deliver successful projects and grow your business.

When evaluating technology for your company, it is crucial that your field and office team members work together to view, edit and share files and documents.

Consider utilizing tools that are interconnected, so that data can easily flow between the field and the office. This way, all of your documents can be updated in real time, providing a full picture to everyone in your organization!

Avoid Conforming to Technology As a subcontractor, your core business comes down to managing projects. And what’s more? You excel in your field because you have unique practices, processes, and expertise in the industry.

Don’t settle by changing your best practices to meet the restrictions of a project management tool.

Instead, find a solution that matches your unique processes, and allows you to win business.

Prioritize Efficiency It is easy to be tempted by smallscale tools that provide immediate relief. These band-aid products address specific challenges very effectively. However, creating optimized processes for individual challenges is not the best approach. By targeting small

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issues separately and avoiding the big picture, processes become disconnected and data becomes siloed.

Focus on overall efficiency for your organization to achieve the best possible outcome across all your projects. Approaching your technology strategically will allow you to prevent costly and timeintensive errors, and facilitate communication between the field and office! Plus, thinking ahead allows you to continue to innovate - to solve several challenges in one tool, while keeping an eye forward to continue to improve your processes over time.

Utilize Mobile Technology One key component of connecting your field and office is taking advantage of the mobile technology we all use daily. You need to be able to access your project management technology from both a desktop and a mobile device.

Field personnel are increasingly utilizing mobile devices to execute critical business processes faster and more effectively. While mobile technology has come a long way, most core business systems like Enterprise Resource Planning (ERP), project management, or estimating still do not offer integrated mobile capabilities.

Use mobile technology to plug into your industry network in the field to get answers and quickly take action, so you can work productively and get paid faster.

Complete and update tasks in real time and get answers quickly by communicating directly from the field. Mobile solutions allow you to stay connected and leverage

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the power and efficiency of your solutions whether you are in the office, on the job site, or on the go.

Get the Most from Your Data One of the most crucial connections between the field and office is that of data! To prevent confusion or limited visibility in your organization, house all of your data in the same tool you work in, allowing users to access it in a controlled manner, consistent with your goals and objectives.

Take your data technology a step further by connecting with external project team members as well. Connect your information and workflows with the GCs and owners you work with on your projects to enhance project-wide efficiency, timelines, and margins!

Don’t let the multitude of technology choices keep you from leveraging technology in your business. Common sense is actually a better guide than you think.

Jeff Burmeister is Director, Subcontractor Network for Kahua.

Jeff is responsible for Kahua’s connection and conversation with all Subcontractors.

Kahua offers a simple project management and collaboration platform which is leveling the playing field for Subcontractors.

Kahua’s Subcontractor Project Management suite connects field to office, organizes documents and streamlines communication to improve efficiency, reduce risk and deliver superior project outcomes profitably. Learn more at Kahua.com

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F E AT U R E How Are We Doing?

Developing a Firm-wide Obsession with Customer Feedback

by Gregg Schoppman, Principal, FMI Corporation During the 1980’s, the Mayor of New York City was the famous and outspoken Ed Koch. One of the interesting remnants of his tenure was his affinity for asking his constituency the question, “How are we doing?” In today’s hyperexplosive 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 this question to solicit feedback about the local government performance. It is safe to say, there was no shortage of

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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

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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 “How are you 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

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safety director?” Regardless of what the competition is using your foibles for, great firms realize that feedback is an essential gift to drive superior long-term performance.

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 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 overreliance on electronic surveys. The “DELETE” button is a wonderful tool and unfortunately allows the customer to

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• Is the survey too complicated?

• Do we not follow-up with the

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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:

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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 to 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 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 an internal scoreboard.

While most will agree that four out of five dentists endorse gum chewing, it is equally interesting how powerful numbers are to businesses. For

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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% of dentists agreeing on gum.

Imagine the impact of a firm being able to say “According to our customer research, we have a 98% 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.

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 why the dentists like gum and endorse gum-chewing become game-changing questions for the gum business. Now we can work on those 20% who need to see the light.

FMI is the largest provider of management consulting, investment banking, and research to the engineering and construction industry. FMI works in all segments of the industry providing clients with value-added business solutions. For more information visit www.fminet.com or contact gschoppman@fminet.com.

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F E AT U R E Looking to Improve Safety Culture?

Have Management that Commits

by Dave Galbraith, AVP of risk management, technical lead, for Amerisure Insurance

Health and safety culture is the key factor in determining the effectiveness of a safety system. The everyday actions and behaviors that occur on the job site determine the success of a safety program.

Many studies show that middle and low level managers, in particular, influence the health and safety wellbeing of subordinates. Those who place a high priority on health and safety, and who use their authority to enforce safety, experience greater safety culture. To showcase their commitment and improve safety culture, managers have numerous options. Implementing the suggestions below can be the first step in transforming the health and safety values at your organization.

or telematics, to collect safety data and guide the safety culture transformation at the company. These technologies can reduce safety incidents and help your organization operate more efficiently.

Develop policies, procedures and guidelines

Share your commitment

Safety language should be incorporated into applicable policies and procedures. These plans should encompass topics from equipment operations to worker rescue.

Employees should be briefed on the policy during their new hire training and regularly going forward. All employees should have access to a digital and print copy of the company’s safety procedures for reference.

Implement safety activities Finances should be used to purchase appropriate personal protective equipment and to provide continuous safety education for all employees.

An organization may also consider investing in technology, like wearables

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Identify recognition and corrective action processes Employees who proactively identify hazards and close calls, or report injuries, are a great safety asset. They might receive a shout-out during a safety meeting, or other recognition for their effort. On the contrary, when a safety situation arises it should be addressed visibly and promptly.

Your organization should develop a formalized process of addressing safety concerns and conducting blame-free investigations of incidents.

Dave Galbraith is AVP - Loss Control Technical Lead at Amerisure Insurance.

Amerisure is one of the nation's leading providers of commercial insurance, protecting businesses for over 100 years. They specialize in managing risk for businesses in construction, manufacturing and healthcare. Amerisure.com

It all starts with management!

One of the easiest ways to show your commitment is on the job site.

Always wear the proper personal protective equipment and follow all safety policies. Management also can lead discussions about safety during meetings or other impromptu events. When safety is made a regular topic, employees feel more comfortable discussing concerns with management.

In conclusion, by following these tips, managers can create a cohesive safety climate that aligns the adequacy of programs, organizational procedures and actual job site conditions. This climate will improve overall safety culture and enhance your business.

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F E AT U R E Sidewall Protection for OTR Tires Keeps Concrete Recycling Operations Running

by Bob Welker, International Marketing Director, Argonics At concrete and aggregate recycling sites, recycled aggregate is produced by crushing concrete and asphalt to reuse the aggregate in the construction industry as a base for roads or building foundations.

To keep operations running, site managers rely on loaders to push large jagged chunks of torn up sidewalk, roadway, or building materials – which can have steel rebar sticking out – to the crushing line to reduce its size. Even though Off The Road (OTR) tires for heavy equipment are specially designed for harsh environments, the risk for damage is still high. One of the most common failure points is the tire’s sidewall.

Without added protection, the jagged edges and steel rebar in piles of debris can put loaders’ OTR tires at severe risk of sidewall puncture and abrasion, particularly the front tires closest to myriad sharp, abrading objects.

Fortunately for operations managers, a new breed of tough, durable sidewall protection for OTR tires is designed to stop loader sidewall punctures and abrasion while significantly extending tire life to keep aggregate recycling operations reliably running.

Minimizing Costly Sidewall Puncture Research by the Mechanical Engineering Department at the University of Alberta in 2011 on the detection of faults on off-road haul truck tires identified five tire failure areas: tire tread, shoulder, sidewall, bead, and liner. The study cited research by Syncrude Canada Ltd. that examined the causes for off-road tire failure from 2005-2010. Sidewall cuts accounted for approximately 18% of all faults, sidewall separation 10%, and sidewall impact over 5%.

When the sidewall is damaged in loaders, typically by a puncture, the vehicles are not safe to operate and

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the OTR tires are expensive to replace.

Caterpillar 980 Wheel Loader OTR tires, for example, can cost up to $6,000 or more each.

Repairing a damaged sidewall takes valuable time to send a tire out for repair, and the repair may not be successful.

So, an aggregate recycling operator faces a sidelined loader, expensive tire replacement, and reduced production or even significant operational downtime.

With shortages for certain tire sizes more common recently, it could take days or longer to get a replacement tire installed at a repair facility, and then get the loader back to work.

As a solution, an innovative new type of sidewall protection device is entering the market for valuable OTR tires. Purposebuilt for use on heavy equipment at aggregate recycling sites, operators can bolt on a polyurethane sidewall shield to prevent the sidewalls from getting punctured during operation.

These sidewall protectors are made of a proprietary urethane formulation called Kryptane, which was engineered for extreme wear conditions involving abrasion, sliding, or impact.

The special properties of urethane make it an excellent material for sidewall protection. This tough, elastic material excels in preventing the penetration of sharp objects as well as deflecting them.

It will change shape under impact and then return to its original shape afterward.

Urethane also offers maximum abrasion resistance, which is ideal for situations where severe wear is a problem.

For these reasons, urethane is already being used at mining, heavy construction, and aggregate recycling sites with much success.

The idea for applying the special properties of urethane for off-road sidewall tire protection came from Perry Fell, Territory Manager at Luff Industries, a Canadian distributor of Kryptane

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manufacturer, Argonics. He thought the company’s expertise in high performance polyurethane elastomers would be well suited to an OTR application, and proposed the original design.

The sidewall protector comprises eight integrated segments that, together with a specially designed ring, use 32 bolts to apply to a wheel. The entire sidewall protector can be installed in about 15 minutes once the special flange has been installed by certified personnel.

The benefit of this design is that it allows easy replacement of just the segment of the protector that is damaged, if any, not the entire shield. Virtually no maintenance is needed other than to retorque the bolts after 15-20 hours of use – much like when installing new tires on a car.

The urethane-based sidewall protector has been tested at aggregate recycling sites in Toronto, Canada and Dallas, Texas.

It has been installed on the front tires of Caterpillar 980 loaders at these sites.

The sidewall protector has been performing extremely well with no tire punctures or sidewall issues since installing the protectors.

The patent-pending urethane sidewall protector is in its fourth generation.

Currently the design is based on a 25” wheel diameter used by loaders such as the Caterpillar 980. The company is planning sidewall protectors for 33” and 45” wheel diameters next.

Bob Welker is the International Marketing Director at Argonics, a Michigan-based firm which specializes in high-performance, polyurethane-based elastomers and is one of the largest producers of impact, wear-resistant and customizable urethane products, has developed this sidewall protection.

For more information, please visit the Argonics website at www.argonics.com.

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F E AT U R E Safety First: Prioritizing Workplace Safety for Subcontractors

by Patrick Hogan, CEO, Handle

Is workplace safety important? “Of course!,” you answer immediately. It’s a no-brainer. Subcontractors agree that workplace safety should always be the number one priority in all types of businesses. However, there is more to construction safety than you might think. Here are some of the reasons why workplace safety is important.

Why is Workplace Safety Important?

1. Safety reduces the risk of injury and death.

All industries have a safety risk, but construction is one of the most dangerous. According to the latest data from the Occupational Health and Safety Administration (OSHA), there were a total of 971 construction fatalities recorded in the United States in 2017,

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amounting to 20.7% of the total worker deaths during the year.

OSHA cites four leading causes of fatality in the industry—falls, being struck by an object, electrocution, and being caught-in/between hazards. According to the agency, eliminating the risk brought by these “fatal four” will save 582 workers’ lives in America every year.

More than your employees’ importance to your bottom line, they are first and foremost human. Human lives are

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priceless. Injuries and death affect more than a single person and the impact is devastating to their families, their colleagues, and the community. You owe it to your employees to provide a safe working environment.

2. Safety increases employee engagement.

Employee engagement is one of the pressing issues in the construction industry today. The dynamics of working in the field are different from

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those of working in an office. Employee absenteeism and attrition will severely hamper your operation if not addressed immediately.

One way to improve engagement and increase employee satisfaction is by prioritizing workplace safety. For instance, you can involve employees in the creation of safety measures through walkthroughs and incident reports. As they are the ones facing dangers each day, your employees have valuable insight into how to improve safety.

By actively making safety improvements in the workplace, you can build the trust and loyalty of employees.

Employees will be more likely to show pride in their job and increase their productivity.

3. Safety improves your reputation in the community.

News of accidents and injuries caused by employers falling short of safety standards can spread like wildfire in the industry. This can severely impact your reputation among clients and stakeholders. Nobody wants to do business with a company with a bad safety reputation.

On the other side of the coin, a safe work environment demonstrates a company’s social responsibility. It helps promote the company’s brand and attract new customers and helps it retain existing clients. A good safety reputation also attracts new employees.

Especially now that there is a persisting labor shortage in the industry, prioritizing safety in the workplace can go a long way in attracting better talent.

How to Prioritize Workplace Safety Now that we have established the reasons to improve workplace safety, it is now time to take proactive steps to reach this goal. Here are some of the ways you can create safe working conditions for your employees.

1. Conduct regular workplace safety checks Nothing beats conducting safety checks to identify and assess the hazards present in the workplace. The

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data collected from this analysis will be the basis to create or improve your own safety programs.

You need to check three areas when conducting a safety analysis:

• Environmental hazards. These are

the conditions on the site that may cause accidents, such as uneven floor surfaces, dust, and poor lighting.

• Equipment. All pieces of equipment, especially heavy machinery, have their own associated risk. Lack of maintenance further increases this danger.

• Employee behavior. How employees

go about their day-to-day tasks, such as handling chemicals and using work tools, Site walkthroughs and interviewing employees will give you important insight into the current state of your workplace safety.

However, you should also conduct surprise checks to ensure that your findings are accurate.

2. Invest in personal protective equipment.

Another important part of workplace safety is the use of personal protective equipment (PPE). PPE is specialized equipment that protects individual employees from different safety risks present in the construction workplace.

Different working conditions require different protective equipment. Before investing in PPE, identify the dangers present in the workplace and pick the pieces of equipment that address them.

For example, construction workers that are in danger of being hit by falling objects should get hard hats, while those that are in dusty conditions should have breathing masks.

3. Develop a workplace safety program.

Workplace safety is a continuing process and requires team effort to be effective. Developing a companywide program dedicated to safety lets your company have a firm foundation to educate both new and existing employees on safety procedures.

A good workplace safety program includes tools and resources that help employees address different scenarios.

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For example, employees can be trained to provide basic first aid and administer cardiopulmonary resuscitation (CPR).

Safety trainings should also be a focus from day one. The initial employee orientation should provide in-depth training on safety practices and the uses of PPE. 4. Maintain an open-door policy to employees A huge part of establishing trust between you and your employees is creating free and open communication.

Your employees should be comfortable enough to tell you different job concerns, including safety issues in their workplace. Without this opendoor policy, the dangers present in the job rise and the risk of costly coverups increases. Unforeseen incidents can have devastating results for your business.

When creating an open-door policy, start by establishing a schedule where you or your managers are accessible.

Listen intently to your employees to identify the root cause of the issue.

Remember that the way you respond to these issues can have a lasting effect on your employees and the rest of your workforce.

Workplace safety is an ongoing collaboration between management and employees. Prioritizing safety allows you to protect your most valuable and priceless asset—your employees.

By working together, leadership and employees will be able to identify the dangers present on the job and take the necessary steps to eliminate them.

Patrick Hogan is the CEO of Handle. com, where they build software that helps contractors, subcontractors, and material suppliers secure their lien rights and get paid faster by automating the collection process for unpaid construction invoices.

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CONSTRUC TION IN THE COURTS ASA SLDF WINS BIG FOR OHIO

by R. Russell O’Rourke, Esq. - Partner -- Chair, Construction Law Practice Group Meyers, Roman, Friedberg & Lewis

In the January 2019 issue of The Contractor’s Compass, which focused on Construction Court Cases You Ought to Care About, we wrote about The Surprising Case of a Preliminary Notice that Wasn’t. This summer, ASA’s Subcontractors Legal Defense Fund (SLDF) filed its Amicus Brief in support of a subcontractor, Pursuit Commercial Door. Pursuit was victimized by a 2010 case that inappropriately applied Ohio’s Notice of Furnishing (“NOF”) statute, then badly misconstrued and misapplied a 1991 case with similar facts. This August the Summit County Court of Appeals corrected the problems caused by the 2010 case permitting

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the subcontractor to prosecute its mechanic’s lien, even though it served its NOF before it began work. So at least in Ohio’s Ninth Appellate District, subcontractors and suppliers can breathe a little easier when serving their NOFs.

its mechanic’s lien rights by serving a notice of furnishing, “… any time after the recording of the notice of commencement [“NOC”]…but within twenty-one days after performing the first labor or work or furnishing the first materials….”

The case, Pursuit Commercial Door Solutions, Inc. v. ROCE Group, LLC, the trial court determined that Pursuit’s mechanic’s lien was void because it served its preliminary notice—in Ohio, Notice of Furnishing (“NOF”)—TOO EARLY (One has to ask, what is the harm in serving an NOF too early?). The NOF statute ORC §1311.05 provides that a subcontractor or supplier may preserve

The Court in the 2010 case, Halsey Inc. v. Isbel, quoted the statute, but omitted, “any time after the recording of the notice of commencement,” leaving only, “within twenty-one days after performing….” Removing those 10 words changed the intention of the legislature, narrowing the time period to serve an NOF until after the first work or material was supplied. Pursuit served its NOF after the NOC but

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before it began its first work on the project.

First, the Halsey Court was misguided into focusing on the NOF statute. The Halsey project was a home construction project. NO NOFs are to be served on a Home Construction project, ORC §1311.05 (E), so the issue should have never been included in the Halsey opinion.

Halsey merely attempted to use the NOF as a notice to the lender in the same fashion that was attempted in the 1991 case, Buy-Rite Lumber Co. v.

Bank One, Akron, NA. Similar to Halsey, Buy-Rite attempted to use a preliminary notice—NOFs did not exist at the time— given to the lender on a home construction project, relying on ORC §1311.011 (B)(5) of the prior mechanic’s lien law—before the statute was amended to include Notices of Commencement and Notices of Furnishing.

The point was to hold the bank liable when it had paid the final draw on the construction loan. Buy-Rite claimed that the lender should have known that Buy-Rite was unpaid because it had sent a preliminary notice advising that it would be supplying materials. BuyRite’s notice merely notified the lender that Buy-Rite was to deliver lumber to the project, not that it had delivered and was unpaid. ORC §1311.011 (B)(5) —similar to today’s statute—required the notice to advise the lender that a subcontractor or supplier was unpaid, not simply working on or supplying to the project. The case had nothing to do with mechanic’s liens, NOFs or

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even timing, only whether Buy-Rite had given notice to the lender that it had been unpaid for its materials prior to the distribution of funds by the lender on the construction loan.

The Halsey Court found that Halsey had given notice to the bank that it was unpaid, but held against Halsey because it had served its NOF—the NOF that it was not required to serve—too early. To give some meaning to the “too early” concept in Halsey, the Court noted that Halsey sent the notice of furnishing on May 14, 2007 and that because service of an NOF is

The Pursuit Court held that the construction of ORC §1311.05 as determined by the Halsey Court requiring that an NOF can only be served after the first labor or materials were furnishing was wrong, correcting the damage done by the Halsey decision. Before applying this information to your company’s procedures, contact your construction law attorney.

Russell O’Rourke’s 30+ years of active

deemed to be served upon mailing, it was considered served on that date.

Materials were first furnished on May 15, 2007 [the statute] clearly provides that a notice of furnishing should not be served until after materials are furnished.” So, the Court found that even though the owner had not yet received the NOF that was not required, because it was mailed one day before the first materials were furnished the NOF was served too early, so the lender was not bound to it obligation to obtain a lien waiver from Halsey before distributing the construction loan funds.

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involvement in construction industry trade associations have allowed him to serve in the roles of client and industry advisor, advocate and leader. His active engagement has also translated into driving and contributing to legislative issues for the benefit of the construction industry, recognizing the issues that are most important to his clients and advising them of various approaches and resolution options using good business judgment. Find out more at meyersroman.com

ASA’s Subcontractors Legal Defense Fund supports ASA’s critical legal activities in precedent-setting cases to protect the interests of all subcontractors. ASA taps the SLDF to fund amicus curiae, or “friend-ofthe-court,” briefs in appellate-level cases that would have a significant impact on subcontractor rights. Know of a decision that could set a precedent impacting subcontractors, and want ASA to get involved? Send your completed SLDF application to ASAOffice@asa-hq.com

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Coming Up

Complimentary Webinars

in the October 2019 Issue of ASA’s

Tuesday, October 8, 2019 12 p.m. to 1:00 p.m. Eastern / 9 a.m. Pacific THE

Payment Clauses: What to Watch For and How to Negotiate Them Presenter: James Yand and Brian Esler, Miller Nash Graham & Dunn PC James Yand is a partner and a member of the firm’s litigation practice team.

Jim has more than 20 years of experience resolving disputes for business owners and individuals in construction law, products liability, e-discovery, franchise and commercial law.

Clients in the Northwest and around the world know Jim as a reliable ally who practices with integrity and is focused on delivering results. Reputed for critical thinking and problem-solving, no matter the size of the case, Jim specializes in resolving high-conflict cases that often determine the continued success of the client’s interest. He seeks effective resolutions with cost-efficiency. From discovery conducted in Hong Kong to local cases filed in Seattle, Jim leverages his local-national-global knowledge. Jim is a frequently requested speaker for business and legal programs, providing guidance on legal industry protocol, e-discovery, and relationship development among attorneys.

Brian Esler leads Miller Nash Graham & Dunn’s Washington State commercial litigation team. He was recently recognized as one of the Top 100 Attorneys in Washington State by Super Lawyers magazine.

His practice emphasizes intellectual property advice and litigation, construction litigation, defense of financial institutions, and appellate advocacy. Register by clicking here.

12 p.m. to 1:00 p.m. Eastern / 9 a.m. Pacific

Hendrick, Phillips, Salzman & Siegel

With construction booming, many subcontractors find themselves struggling to provide enough labor at each project. As a result, more and more subcontractors are engaging second tier subcontractors to help with the current work load. Subcontracting work to a subcontractor, however, does not absolve the first tier subcontractor of responsibility for safety under OSHA, even in a situation where all of the work is performed by a subcontractor. OSHA can issue a citation to the controlling employer, the correcting employer, and the creating employer, in addition to the exposing employer. We will discuss OSHA’s multi-employer worksite doctrine, and we will also be sure to discuss the duties required of each type of employer on a multi-employer worksite. We will also address the unforeseeable employee misconduct defense to an OSHA citation, for when the subcontractor is cited as the exposing employer.advocacy. Register by clicking here.

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• The U.S. Construction Industry: Looking Ahead at 2020

To access past issues of The Contractor’s Compass, please click here.

Presenter: Philip J. Siegel, Esq., partner and shareholder with the firm of

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• How Contractors Can Prepare for The Construction Industry’s Paradigm Shift

Look for your issue in October.

Understanding OSHA’s Multi-Employer Worksite Doctrine and the Unforeseeable Employee Misconduct Defense

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Competing in Tomorrow’s Marketplace

• “Yes Sir, Can I Have Another?” How organizations hurt their operations team without even knowing it

Tuesday, November 12, 2019

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For questions about subscribing, please contact: communications@asa-hq.com

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Applications are now being accepted for many of the awards offered by ASA. Certificate of Excellence in Ethics This award recognizes subcontractors for their commitment to ASA values, such as quality construction and a safe and healthy work environment. Each applicant is required to respond to questions concerning the firm’s corporate ethics policies and procedures, its construction practices, and its general business practices. Each applicant also is required to submit detailed documentation, including sealed letters of recommendation from a customer, a competitor, and a supplier.

National Construction Best Practices Award This award recognizes prime contractors that exemplify the values of subcontractors, treat subcontractors fairly through use of levelplaying-field contract terms, and consider subcontractors part of their core project teams. The program’s rigorous criteria include the use of a standard subcontract whose provisions substantially reflect the best practices incorporated into the ASA-endorsed ConsensusDocs 750 Standard Agreement Between Constructor and Subcontractor, as well as highly favorable evaluations from three specialty trade contractors, based on 20 project management factors.

There are many more awards available through ASA, and more information about all of them can be found by clicking here. All award winners will be recognized during the 2020 SUBExcel conference on March 4-7, 2020, in Las Vegas, Nevada. We highly encourage all ASA members to get involved in our awards program. These valuable recognition opportunities are only available to ASA members.

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