Local Branding Can Trump National Competitors

The marketing game can certainly be complex. With hundreds of tools, thousands of options and one big learning curve in between, it’s easy to be inundated.

Throw in some big conglomerate-sized competitors and it’s downright daunting.

Nevertheless, local contractors actually have an advantage. They are in an incredible position to build the very best of brands. All they need to do is start!

SEE THE OPPORTUNITY: A BIG BRAND

Why do people choose big-name brands over competitors? Because they know what to expect.

The bar is set pretty low for blowing customers out of the water with service, quality and efficiency. However, when you can create a truly great customer experience, people will remember it. Customers tend to expect greatness to come from those companies that put forth an appealing and professional image. Their branding gets remembered. And the brands that get remembered are usually the ones that succeed.

A major flaw that many small businesses and contractors fail to recognize is that their brand is not memorable. Maybe they use initials for their company name or have bland truck-wrap designs. Maybe their website looks like it was made in 1995 or their brochure is full of grammatical errors. Whatever the case may be, there is always room for improvement.

A big brand excites and reassures. It doesn’t lead to skepticism or distrust. You can beat out the bigger companies when it comes to delivering personable, reliable and memorable service in your community. You just need to get your visual presence to reflect that.

So how do you make that happen?

PROFESSIONAL LOOK, PERSONAL FEEL

Customers want a service that’s human and personalized. But they also want an outfit that looks the part. The challenge is how to blend the two.

If you think aspects of your service, like tidy uniforms, clean service equipment and a slick-looking company truck, don’t matter, you’re severely missing out. Thoughtful service can help get your company’s reputation in good standing. Yet it’s only when you’ve got a brand that matches your high-quality service that you can expect to crush the competition.

Put customer woes to bed by taking hold of your brand and getting a professionally designed logo. The degree of aesthetic quality and industry-appropriate imagery will position your name as an immediate authority.

UPDATED AND INTEGRATED

Does your website and digital presence reflect your most current services and information? In 2014, this is a must!

You lose customers when you default on your brand promise by providing misleading information or not living up to expectations. Ignorance of an error is no excuse; customers will be disappointed and frustrated when certain expectations are not met. This is business.

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A Roofer’s Guide to Safely Navigating an OSHA Inspection

Almost every American can recite his or her Miranda rights. We have all seen enough cop dramas and world’s wildest police chases on prime-time television to know that when the police, FBI or other law-enforcement agencies get involved that we have the right to remain silent, and we know that everything we say can and will be used against us in a court of law. Unfortunately, many roofing contractors in the construction industry do not remember their rights when an OSHA inspector arrives at their job sites, and this can lead to hefty fines. It is very important for residential and commercial roofing contractors to remember OSHA inspectors are adversaries when they visit your job site, and they are not inspecting your equipment and interviewing the crew out of curiosity. When an OSHA inspector arrives onsite, he or she is usually there to gather evidence to issue a citation.

One of the most discouraging situations that we have seen from OSHA’s recent push for larger fines and more citations occurs when honest men and women in the roofing industry open their arms to OSHA inspectors who arrive at the job. Roofing contractors and their crews are not criminals, and most truly have nothing to hide. The majority of contractors in the industry are hesitant to take a firm stance against an apparently well-to-do government agent on their job site. However, a roofer who opens up and allows OSHA inspectors free and unlimited access to a construction site is making a costly mistake. Therefore, it is important to remember that when OSHA visits on your next project, there are a few key questions that every roofing contractor needs to be able to answer about the inspection.

WHY IS OSHA ON MY JOB SITE?

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

DO I HAVE TO COMPLY? HOW SHOULD I COMPLY? WHAT HAPPENS IF I REFUSE OSHA ACCESS?

First and foremost, you need to know that OSHA has a legal right to inspect your job site. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of city, state or federal law enforcement needs a much more specific probable cause to enter a private citizen’s property. When an active construction job is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause it needs.

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

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

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Forum-selection Clauses and Their Impact on the Construction Industry

With the national housing market poised for slow but steady growth in 2014, U.S. contractors expect a good year for business, and the number of contracts and subcontracts for construction work is expected to increase. Many of these contracts will contain forum-selection clauses, and a recent U.S. Supreme Court ruling brings to light the importance of these clauses and coming changes in their enforceability.

WHAT IS A FORUM-SELECTION CLAUSE?

A forum-selection clause is a contractual provision in which the parties establish the place for specified litigation between them. These clauses have become increasingly common in construction contracts, particularly with general contractors who do business in two or more states. Often, general contractors have a form subcontract agreement they require or ask all subcontractors on a particular project to sign. If general contractors work in multiple states, forum-selection clauses can help them make potential litigation less costly and easier to manage by guaranteeing the litigation will take place in the company’s home state, where its executives and attorneys likely work.

An example is a general contractor based in New York but working on a North Carolina project and entering into a roofing subcontract with a North Carolina roofer. The general contractor can present the subcontractor with a forum-selection clause mandating any legal claims arising from the subcontract may only be brought in a New York court. For a North Carolina contractor, finding counsel and filing suit in New York will likely be more difficult and costly than doing so in North Carolina, especially when evidence and witnesses are located in North Carolina. In this example, the forum-selection clause makes litigation more predictable and cost-effective for the general contractor and also decreases the likelihood the subcontractor will actually be able to sue, so it most likely favors the general contractor.

To protect local contractors, many state laws have declared out-of-state forum-selection clauses unenforceable in construction contracts. These states include Arizona, California, Connecticut, Florida, Illinois, Louisiana, Minnesota, Montana, Nevada, New York, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Utah, Virginia and Wisconsin. Additionally, state laws in Nebraska, Rhode Island, South Carolina and Texas make forum-selection clauses unenforceable in certain circumstances that sometimes, but do not necessarily, encompass construction contracts. In the first category of states, local contractors have been able to file suit locally despite forum-selection clauses because courts in these states can apply the state laws and disregard the clauses. However, the U.S. Supreme Court’s recent decision on these clauses will severely limit the reach of these laws and will ensure that forum-selection clauses are enforced in many more cases.

CASE BACKGROUND

In December 2013, the U.S. Supreme Court issued a unanimous decision in the case of Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas. The court held that defendants in federal court can use forum-selection clauses to transfer their cases to the state specified in the clause, even if the suit is brought in a state with a law deeming these clauses unenforceable. Essentially, forum-selection clauses may be enforced by a venue transfer motion.

The case involved Atlantic Marine Construction (AMC) Co., a general contractor based in Virginia. AMC won a federal contract from the U.S. Army Corps of Engineers to construct a building at Fort Hood, Texas. AMC subcontracted with J-Crew Management, a local Texas company, to perform some of the work. AMC’s contract, which J-Crew Management signed, included a forum- selection clause dictating that any legal disputes between AMC and J-Crew Management arising from the contract had to be brought in state or federal court in Norfolk, Va.

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Improve Your Relationship with Condo Associations

Is your roofing company struggling to make ends meet, or are you searching for new ways to make your company thrive? I think at some time in every business owner’s career they come to a point where they realize that just being “good” isn’t good enough in today’s competitive marketplace unless your service or product is truly niche.

In the roofing industry, let’s be honest, there are quite a few of us out there. In my neck of the woods it’s not difficult to find two-dozen or more competitors. This is why my firm has to come up with ways to set ourselves apart from the pack. One of the best ways to do this is by improving our business relationship with condominium associations and board members, as well as property managers. These relationships have led to us not only being the first contractor called when there’s a problem at a building, but we also have received a number of referrals.

There are many ways to build relationships with condo associations and management companies, and I can almost guarantee that if you do it right your company will see gains like never before.

Network

To get your foot in the door, search the Internet for “condo management associations”. In my area of southwest Florida, the Falls Church, Va.-based Community Associations Institute is active. We joined the group and attend its chapters’ networking events. Groups like these are where condo managers decide on their “favorite” contractors. They talk to each other; “word of mouth” is a huge marketing tool. If you want to be on their minds, you need to be on their invitation list for these meetings. Once these relationships are built, managers won’t be looking for cheap bids anymore. You put yourself closer to the driver’s seat for potential negotiations.

If you personally don’t have a profile on LinkedIn, you’re missing a HUGE opportunity to network on America’s largest social-networking platform for professionals. Join LinkedIn for free and, if you own a company, be sure to build your company page, too. Then search for groups in your state or city that relate to property managers or condo associations. Most importantly, don’t just be a fly on the wall in these groups. Comment on other members’ posts and share your knowledge. This is how you add value and what makes your company unique. Being active online will increase activity toward your website; by the way, you should have a website worth sharing.

Don’t Sell; Educate

When joining these groups, don’t just sell yourself or your company because people are tired of being sold. Instead of touting how great your company is to every property manager you meet, try finding out their pain-points and objections and then educate them about how your services will make life easier for them. This is HUGE!

We recently asked approximately 50 building managers via email what frustrated them the most in dealing with contractors. We received informative answers that will help our business. Consider the following frustrations building managers cited:

  • Long response times: 25 percent
  • Taking too long to perform tasks: 25 percent
  • Not returning phone calls: 25 percent
  • Not following HOA rules/regulations: 15 percent
  • Dirty contractors and vehicles: 10 percent

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Four Tips for Great Leadership

In the past three and a half years, Saratoga Roofing & Construction of Oklahoma City has grown from $6.5 million in annual revenue and four employees to a company earning $50 million with 265 employees. To what do we attribute this phenomenal growth? Great leadership.

It has been said: “A good leader inspires people to have confidence in the leader. A great leader inspires people to have confidence in themselves.” Being a great leader takes commitment, confidence and clarity. The old-school method of employing scare tactics—“If you don’t do what I tell you to do, then there’s the door!”—doesn’t cut it anymore in today’s business world. Besides, if you still subscribe to the “It’s my way or the highway” way of thinking, you’re going to alienate everyone who works in your company or organization and nothing will be accomplished. During my career, I have experienced owners and/or leaders who used authoritarian leadership and, in my opinion, they will not make it during the next decade.

Denver Green, Saratoga Roofing & Construction’s president, shares four reasons why Saratoga will continue to be a successful company during the next decade:

1) We continuously work to set a clear direction for our teams. Clarity will always lead to desired results. If you aren’t clear about where you’re going, do you think your team will be? As a leader, my role is to be the visionary who paints the picture for them to follow. If our leaders aren’t clear about the necessary steps our staff needs to accomplish goal, then a lot of time is going to be wasted running around in circles. Our consultant, Masterthink, ensures every company executive has a clear goal with action plans tied to dates and people who are accountable for executing the goal. If needed, we draw a roadmap on paper outlining the full process, starting with the objective and detailing what each person is responsible to complete. The better your directions are, the easier it will be to meet the goal.

2) I work hard to make sure my actions match my intentions and visions. As the leader, I always need to know what I envision being the final outcome of the project/task we’re asking our employees to execute. Do you want to “wow” a client with an exceptional product presentation? Can you see the final project completed? What does it look like to you? Are you excited about this task? The level of my commitment and enthusiasm needs to come across loud and clear to our team. If I’m “ho hum” about the outcome, then guess what? That’s the attitude that will be adopted by members of my team. Some of us are “big picture” thinkers. We forget about all the details that lead to the big picture, but as the leader of Saratoga, I can’t allow myself to let those last-minute details slide. If I do, then the final outcome will definitely not be to our liking.

3) Creating a cohesive team has been a real key to our success but also a big challenge. I must have confidence in my team and their abilities. Knowing who fits in where on our team is crucial to creating success. We know it is critical to assign the “right” people to the “right” tasks. If one of our employees doesn’t like dispatching but loves to work on data entry, then we assign him or her that job. Knowing the strengths of each member of our team is crucial in achieving a successful end result. Forcing someone to take on duties he or she absolutely hates creates resentment, and resentment slows down the entire project or leads to poor performance. Our company utilizes the online assessment tool StrengthsFinder as a means to understand
the strengths of our employees so we can maximize their abilities and strengths to the fullest extent.

4) Work smarter, not harder. I know we have heard this phrase a million times, but it bears repeating. Learning to delegate the workload to the right person will lift some of the weight of turning in a top-notch end result off your own shoulders. My role is to be the visionary—not the micro-manager. I model what it means to be a leader and a follower and, in turn, I take great pride in inspiring and creating great leaders for the future.

As a member of the Saratoga Roofing & Construction team, I can truly say this is the “Saratoga Difference”.

Five Ways Construction Professionals Can Protect Their Contractual Rights and Avoid Misunderstandings

If your company has recently been awarded a contract for construction work, congratulations! In finding the work and having your bid accepted, you’ve demonstrated your capability to efficiently furnish high-quality labor and materials. At this point, many contractors have no choice but to immediately proceed with reviewing the schedule, scope of work and specifications, as well as preparing to mobilize labor to meet time-related demands. With this flurry of activity, many contractors forget to reduce the agreements to writing, fail to sign written agreements, or—worse—sign contracts without reading all the terms and conditions. The following tips and information can help busy contractors prevent common pitfalls from occurring and offer guidance for those mired in contractual disputes.

1. Put everything in writing.

Most construction professionals would agree written contracts are essential for projects with new or relatively unknown clients, but many feel that long relationships with clients and mutual trust and respect eliminate the need for written contracts. In fact, some fear written agreements have the potential to offend other professionals with whom they have a positive past working relationship. However, written contracts are essential in today’s economic and legal climate and can be seen as a way to honor the mutual respect many feel toward past and repeat clients. The primary purpose of a contract is not necessarily to give one party an advantage over the other. Instead, the goal is for both parties to clearly delineate each party’s expectations from the other to avoid unwanted surprises. If both parties are aware of the duties, responsibilities, risks and rewards before the project commences, there will be less potential for disputes and misunderstandings than there will be without a written agreement.

2. Know that complying with licensing statutes is essential to preserving contract rights.

North Carolina and South Carolina, like most states, prohibit unlicensed contractors from enforcing the provisions of their contracts if a license was required for the contract in question. Additionally, North Carolina case law requires contractors to strictly comply with N.C. General Statutes Chapter 87, which contains specific provisions about the name in which contractors can lawfully hold a license. Failure to comply with the statutes will prevent contractors from enforcing the provisions of their construction contracts.

South Carolina has taken an even stricter approach. Pursuant to S.C. Code Ann. §40-11-370, it is unlawful to engage in construction under a name other than the exact name on the license issued to the contractor (if a license is required for the work), and an entity that does so may not bring an action in law or in equity to enforce the provisions of a contract. This means even a duly licensed contractor can be barred from any recovery for breach of contract, including lien and bond lawsuits, if the contractor’s name on a written contract is even slightly different from the contractor’s name on the contractor’s license. Although some states have case law adopting this principle, South Carolina appears to be the only state that has codified the rule. Therefore, it is imperative a contractor’s name on the contract is the exact same name as the name on any contracting license required for the work in question.

3. Assume no damage for delay clauses are enforceable.

Both North and South Carolina courts generally enforce “no damage for delay” clauses, which specify owners will not be liable for a general contractor’s damages arising from delay, disruption or interference—even if the owner is responsible. General contractors can enforce these provisions against subcontractors or suppliers, too. Often, the contract will provide that additional time—contingent on written approval by the owner, architect or general contractor—is the sole remedy for delay.

South Carolina courts have recognized some exceptions to these clauses’ enforceability, however. The South Carolina Supreme Court held in Williams Electric Co. v. Metric Constructors Inc. (1997) delay caused by fraud, misrepresentation or bad faith; delay caused by active interference; unreasonable delay giving rise to abandonment of the contract; or delay caused by gross negligence can give rise to recoverable damages.

Similarly, North Carolina courts have overlooked “no damage for delay” clauses and allowed parties to recover damages arising from delays that constitute abandonment of a contract; active interference with the contract; and delays resulting from fraud, bad faith or arbitrary action. Additionally, damages from delays not reasonably contemplated by the parties are recoverable.

Many delay provisions are accompanied by notice requirements, too. Most contracts that do allow parties to recover for delay related damages require the party claiming damages to give notice of the delay, or the source of the delay, as soon as they are aware of it. What constitutes notice and reasonable knowledge of the delay can be open to interpretation. Ambiguity is best avoided through specific provisions in the contract.

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South Carolina’s Workers’ Compensation Laws Have Changed to Benefit the Injured and their Employers

Ensuring compliance with workers’ compensation laws is consistently a concern among many states because of the impact noncompliance can have on injured employees and employers who follow the law. Noncompliance with workers’ compensation laws negatively affects those injured on the job, as well as law-abiding employers. Fortunately, the workers’ compensation laws of South Carolina are implemented relatively efficiently and result in more resolved cases for injured workers than many other states. Some recent changes in the state’s laws are designed to make the process more efficient.

Workers’ compensation insurance provides medical benefits and wage reimbursement for employees who become injured while on the job. The South Carolina Workers’ Compensation Act provides that injured employees are entitled to recover necessary medical treatment, loss of wages during a period of disability, and compensation for permanent disability or disfigurement. There are three types of work-related injuries that can qualify for workers’ compensation payments: physical injuries, mental injuries accompanied by physical injuries and mental injuries with no physical injuries.

In South Carolina, employees may collect workers’ compensation for all wages and benefits, including those from other employers. This gives South Carolina employees an advantage over neighboring North Carolina employees who may only collect workers’ compensation for wages earned from the specific job on which the injury occurred.

Who Is An Employee?

The South Carolina Workers’ Compensation Act defines “employee” as “every person engaged in an employment under any appointment, contract of hire or apprenticeship, express or implied, oral or written … but excludes a person whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer … .”

Every South Carolina employer and employee is presumed to be covered by the act. Employers covered by the act are required to maintain insurance to cover compensation or provide the South Carolina Workers’ Compensation Commission with proof they have the ability to pay the compensation for an injured employee.

There are a few exceptions to the workers’ compensation laws, including businesses employing fewer than four employees or having a total annual payroll of less than three thousand dollars in the previous calendar year, regardless of the number of employees. Employers who qualify for exemption may elect to come under the act and may subsequently withdraw with written notice to the Workers’ Compensation Commission.

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Whether Hands-free, Handheld, Texting or Talking, Distracted Driving Is Deadly

The Washington, D.C.-based National Transportation Safety Board (NTSB), an independent safety agency, recently recommended a total ban of all mobile-device use while driving. According to Deborah Hersman, the chairman of the NTSB, distraction-related crashes killed 3,092 people in 2010, “the equivalent of a regional jet crash every week.”

Every year, drivers–distracted by the use of mobile devices–cause 636,000 crashes, 342,000 injuries and 2,600 deaths. The financial toll is staggering: $43 billion per annum. While some politicians argue about the science behind distracted driving, experts agree: mobile-device use impairs driving ability. According to a study at Carnegie Mellon University, Pittsburgh, talking on a mobile device reduces the amount of brain activity related to driving by 37 percent. Further, recent studies show hands-free mobile devices are no safer to use while driving than handheld mobile devices. Distracted drivers have slower reaction times, and the odds of a crash are four times more likely when a driver uses a mobile device. Critically, many scientists believe these distractions make drivers as collision- prone as having a blood alcohol level of 0.08 percent, the legal limit.

Legal Landscape

In the last 10 years, courts have seen an “explosion” of distracted-driving cases.

In the last 10 years, courts have seen an “explosion” of distracted-driving cases.

In the last 10 years, courts have seen an “explosion” of distracted-driving cases. In the last five years, juries–emboldened by a “profits over safety” trial theme–have rendered numerous multimillion dollar verdicts, as evidenced by the sample verdicts in Figure 1, left.

The claims in these cases are easy to allege but difficult to disprove. This is because the precise time of the accident often is not known and the telematics data and mobile-device records—once obtained—may show or suggest that the employee was talking on his mobile device, texting and/or emailing in close proximity to the time of the accident. Even if there was no actual distraction, a clever lawyer will argue there is “circumstantial evidence” of driver distraction.

The typical distracted-driving case involves multiple types of claims, including driver negligence, vicarious liability, direct negligence and punitive damages.

Driver Negligence

In states that ban texting and/or the use of handheld cell phones while driving, an employee who is involved in an accident while violating these laws will be negligent per se. Under this doctrine, the mere act of using a mobile device while driving automatically makes the driver negligent.

For states that do not have texting and/or cell-phone bans, courts look at the reasonableness of the driver’s accident-causing behavior. In evaluating behavior, courts will consider state laws, federal regulations, voluntary standards, recognized best practices and common sense. For example, in Scott v. Matlack Inc., the court explained, “it is permissible for a trial court to admit [OSHA] regulations as evidence of the standard of care in the industry in a negligence action.” Likewise, in Peal by Peal v. Smith, the court observed, “the breach of a voluntarily adopted safety rule is some evidence of a defendant’s negligence.”

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