Ben Briggs - Cotney Around the Globe - PODCAST TRANSCRIPTION

Editor's note: The following is the transcript of an live interview with Ben Briggs with Cotney Attorneys and Consultants. You can read the interview below or listen to the podcast.

Megan Ellsworth:
Welcome to Roofing Road Trips with Heidi. Explore the roofing industry through the eyes of a long-term professional within the trade. Listen for insights, interviews, and exciting news in the roofing industry today.

Heidi Ellsworth:
Hello, and welcome to another Roofing Road Trips. This is Heidi Ellsworth with RoofersCoffeeShop and we are taking a little road trip across the country to Tampa today to visit with Ben Briggs of Cotney Attorneys & Consultants. Ben is really a leading thought leader in the industry when it comes to labor and employment initiatives. And he also is the leader of that at Cotney. So welcome, Ben, to the show.

Ben Briggs:
Thank you, Heidi. It's good to be here.

Heidi Ellsworth:
There's so much going on right now on the employment front on labor. I mean, it's just kind of crazy with everything that we've been through with COVID in the last year. So I'm really excited to have you share some of your wisdom and leave a few nuggets with our contractors out there. But before we start with that, why don't you tell us a little bit about yourself and kind of your overall role at Cotney?

Ben Briggs:
Sure. So our firm, our general client base is construction companies. And within the firm what I do is I'm one of the partners that heads up our employment division. So all I do day in and day out all year round is employment law on behalf of construction companies, especially roofers. A lot of our clients are roofers. So I'm constantly dealing with roofing companies to help them get ahead of different employment issues. If an employment issue or a lawsuit has arisen, we address that now that it's there. But again, a lot of it is based on trying to be proactive to prevent those fires. And if a fire arises, how can we put it out.

Heidi Ellsworth:
Wow. It is so important for roofing contractors to kind of have this thought in their head because so much is happening with employees. I mean, when you talk about COVID, diversity, everything that's out there, there's so much more than probably, I don't know. Maybe it's always been this way, but don't you see a lot of different and new issues that roofing contractors are dealing with?

Ben Briggs:
Yeah. I mean, 2020 obviously brought in COVID, which came with the slew of brand new employment issues that were not there before. And we're still working through all of those in addition to the typical things that we've been seeing for decades. And you kind of combine that with the ongoing development of technology and what that means to the workplace. So it is a changing landscape and it's kind of one that if you take the time to get ahead of things, you can be at an advantageous position with respect to the market and your competition. But again, it's definitely a challenging time to maneuver these different employment issues.

Heidi Ellsworth:
Yeah. So let's talk about COVID for a little bit. What are some of the employment issues that you've been dealing with around COVID and I would say particularly post-COVID now? Kind of with vaccines, return to work, all those things. What are you seeing?

Ben Briggs:
Yeah. So, I mean one of the main issues obviously are those COVID-19 precautions. Things like temperature checks and wearing masks and asking employees health-related questions, all of these things did not exist. Like a year and a half ago, no one was wearing masks or having employees do temperature checks or answer health-related questions, but the target moves a little bit every week or every month it seems like on what those guidelines are. But again, a lot of what the COVID issues are just precautions. How can we keep our workplace safe? How can we ask certain questions without maybe violating certain laws?
And then obviously the new issue with respect to COVID-19 is these vaccines. So the vaccine that came out, can employers require employees to take it? Can they not? Can you require a subcontractor to have their employees take it or provide you with information about that? So a lot of issues related to vaccines, which again are related in general to this COVID-19 precautions, trying to keep a healthy workplace, trying to make sure your contractors upstream and downstream are comfortable working with you. Trying to make sure your customers are comfortable working with you knowing that you're not going to bring people to their property, to their job site that might have the virus.
So a lot of these issues and there's a whole myriad of them are related to COVID-19 precautions. But in addition to just those issues related to COVID-19 precautions, you have workers' compensation issues. You have OSHA issues. If somebody gets COVID-19, is that a reportable illness that we have to put on our OSHA log? If somebody gets COVID-19, is that a workers' comp claim that they can file with the carrier? A lot of these questions, again, dealing with COVID-19 are beyond simply the precautions to prevent the virus. But what do we do now if somebody's reporting it as far as OSHA goes or worker's comp goes?
And of course, COVID-19 has brought a lot of employees who used to be working in the office or on a job site are now doing it remotely or they're doing part in the office part out of the office. And there's a lot of different issues that come with workers working remotely, that again, add an extra wrinkle to the employment dynamic.

Heidi Ellsworth:
Yeah. And Ben, you've been great. You've helped me. I have been able to ask some questions and get some things out there. As a business owner, this is really hard. I mean, it's hard because you want as a business owner, I truly believe that you need to have the safety of all of your employees, right? So across the board. So as you have said to me, consistency is so important and it's just difficult kind of knowing what is the right thing to do and with all the reporting. What are you hearing from contractors? How are they handling this?

Ben Briggs:
I mean, honestly, it differs a lot from one contractor to another because a lot of the laws differ from what state you're in or even what county you're in. If you're in Santa Clara County in California right now, you have obligations that may not exist if you're down in Orange County, California. And they definitely don't exist if you're in Alabama or Tennessee or some of these other states. So it's really a patchwork of law that will differ a lot from one state to the next and from one county to the next.
So you might do one job in one county and you have requirements as far as the vaccine reporting and masks and whatnot that you don't have if you're doing a project in the county right next door. So really what contractors are doing is giving me a lot of calls, a lot of emails, and we're kind of taking it on a case-by-case basis because you really almost have to given that the law is different or the local ordinances are different depending on where you are geographically.

Heidi Ellsworth:
Yeah. And that's pretty hard too because I'm sure contractors are finding that they may have some jobs that require vaccines. And then what did they do?

Ben Briggs:
Yeah. So for instance, there's certain jobs that might be different if it's a federal or a government job versus just a private job. But there is some I mentioned a minute ago, Santa Clara County. That's an example of a county that my understanding is that whether it's a private job or a public job, they require not that every contractor has every employee vaccinated, but at least determines whether or not they're vaccinated, keeps a record of that. And then is required to then report that as needed to let people know, "Hey, we have a workforce of 50 employees, 35 of them are vaccinated. Seven of them have gotten the first dose, but not the second dose. And eight of them are not going to get vaccinated."
And again, that's just a very unique requirement, but some counties do require something along those lines, whereas others do not. And a lot of it again is just this constantly moving target that business owners have to deal with. And it might be moving from temporarily from this time and it might be different next week or next month, but also geographically. If I'm working over here, I have to comply with these things, but not if I'm working over there. And that's just a really difficult thing for businesses to maneuver during this time period.

Heidi Ellsworth:
Yeah I mean, just in our small little business of RoofersCoffeeShop, I'm seeing it already. And so it's like how do we do all this? But really what we're looking and when I say seeing it, I mean I've seeing it over the industry. We're seeing people who are just trying to kind of figure this out from big corporations to small. But along that same lines with employees who have been working at home for the last year and a half and now are going back to the office, I hear some mixed reviews. I hear a lot of people who are like, "I'm so excited to be back at the office." But then I also hear people are like, "I want to stay working at home." How are you employers handling that?

Ben Briggs:
Yeah. So, I mean, I get a lot of calls from contractors saying, "Can I require people to come back?" I have certain people that wanted to come back a year and a half ago basically. As soon as it happened, they wanted to come right back to work. Others are not only are they not eager to return to work, they don't want to. So part of it is dealing with, "Okay, what are the legal issues involved? What must you do?" And then there's always this gray area where you have discretion. So with respect to employees coming back to work, generally speaking, you can require them to come back to work.
But then again, it's also dealing with that on a case-by-case basis with each contractor deciding is it better for you just from a business standpoint to maybe allow this department to continue working remotely for the time being or allow this individual employee who maybe lives at home with an elderly mother who doesn't want to ... There's different concerns that can kind of, again, lend itself to maybe more case-by-case analysis. And then whenever you're looking at it, you're dealing with, "Okay, what does the law require or prohibit?" And then there's still a lot of gray area beyond what the law requires or prohibits. That leaves discretion to employers to try to make the best decision possible under the circumstances that exist at the time.

Heidi Ellsworth:
Yeah, yeah. And I think from what I'm hearing too, a lot of employers are saying, "Maybe this has worked. It is working with them working at home. So let's figure out some hybrid. Let's figure out what's best for the culture of the company." Because it is good to be able to come back together. Now kind of changing topics just a little bit. And I don't know if it's an increase or just an awareness and maybe you do of the use of subcontractors.
Back in the day when I first started in roofing, which was a long time ago, you had a lot more companies who had their own crews, their own full built out structure. Today you're really seeing a lot more with subcontractors and a small management Salesforce maybe and then bring crews in. What are some of the things that you're seeing around that today?

Ben Briggs:
Whenever you're using subs, there's a handful of employment issues that you kind of want to flag as being kind of some of the main things to keep in mind. One of the first is just classification. And what I mean by that is you want to make sure that if you're using a subcontractor, that subcontractor's properly being classified as a subcontractor rather than as employees of your company. And the reason for that is there's a whole bunch of employment laws that apply to your employees that do not apply to an independent contractor or subcontractor that works for you.
However, when it comes down to the government, whether it's the Department of Labor or maybe a federal judge determining whether its set of workers are in fact your subcontractor, which are outside of these employment laws. Or are in fact an employee of the company within those employment laws, they're going to look at the nature of the relationship between your company and the subcontractor. And they're going to rely on that nature of the relationship. The economic realities test is kind of the legal term for it. They're going to rely on that rather than whatever label the two parties give themselves.
So just because you have someone that you call a subcontractor, you guys signed an agreement, a subcontract agreement that in and of itself doesn't necessarily guarantee that that entity is properly classified as a subcontractor. And again, that classification is really important because there's a whole bunch of laws that apply. In fact, it's a misclassified sub and they're really your employees and those laws do not apply if it's correctly being classified as a subcontractor. So that's kind of maybe the first initial issue to kind of always look at with the subcontractor.
And then going beyond that, assuming they are properly classified as a subcontractor, you're definitely allowed to use subcontractors, but different states have different licensing requirements. So if you're using a subcontractor in a state that requires that the subcontractor have its own professional license, you need to make sure that they do. If you're hiring somebody to do some downstream work for you and they don't have the required professional license to do that, they're going to be engaging in unlicensed contracting. But you as the contractor who brought them a board can also be in trouble for that for an aiding and abetting unlicensed contracting theory.
And so there's licensing issues to look at and those are going to differ from one jurisdiction to the next. Beyond the licensing, these are people who are performing work in a sense on your behalf because you hired them to perform work that was directed to you under the scope of the contract. And you're basically having them do it instead of one of the employees that are directly under your supervision and control. So you want to make sure that they, that subcontractor is complying with things such as workers' compensation, obligations, wage an hour obligations, things of that nature.
You're not going to be able to oversee a subcontractor generally in the same manner that you can oversee your own employees. So what you want to have in place is a really well drafted subcontractor agreement or potentially a master subcontractor agreement that you're using that includes terms about indemnification. So if we get in trouble because you didn't have workers' comp for somebody you brought on the job site, we want to have a term in there that protects us from having to spend all this money or being ultimately the one holding the bag. That's just an example.
These indemnification provisions is one example of what you would want to have in a well drafted subcontractor agreement. There's also issues potentially when you bring a sub aboard of them may be soliciting your customers, soliciting your employees to go work for them. Maybe competing against you. When you're bringing someone aboard, you're introducing them to whoever you're working with on the project, you're introducing them to your employees. You also want to have some sort of protection in place to prevent that solicitation, to prevent that competition, them stealing your contracts, your confidential information, stealing your customers, your employees.
So there's a lot of different things that come into play when you're going outside your house to get your job done. You're going to use a sub to bring them aboard, that can be a great relationship, but it can also be a challenging relationship. And it's really important to have the proper documentation in place to protect yourself.

Heidi Ellsworth:
Yeah. And OSHA, I mean, in safety. I always think that's kind of a difficult ... What do you see with that with subcontractors?

Ben Briggs:
So again, a contractor can control what safety protocols their employees use, what fall protection they use, the whole myriad of things. You can control the training, the toolbox talks, the safety, everything for your employees. But when you bring somebody else aboard to do the work, you don't have that direct control over them. You don't know what training they've gotten through the sub. You don't know what safety equipment they have. And so you're taking a risk to an extent that that they're going to comply with OSHA. And if one of those investigators comes to the job site and they see them up there doing work without their fall protection on, for example, they're going to look at, "Well, who pulled the permit on this job or who's involved in it?"
And again, it can be for a given violation on an OSHA site. There can be multiple different contractors who ended up getting roped into that investigation. And you can be one of them, if your subcontractor isn't following OSHA protocols and complying with OSHA while on the job. And if they're wearing your hats, our shirts, which sometimes happens it's going to be even that much quicker for the investigator to link them to you. And now you're having to explain how these aren't actually our people, this is a sub and all those different things.
And that again is why to an extent at least, you want to have a well drafted a subcontract agreement that addresses, "Hey, if you're agreeing to comply with OSHA, in addition to a number of other things you're agreeing to comply with." And if you don't want to comply with any of these and we get a fine, or we get a penalty or we incur legal fees, you want to shift that burden back to them. Because ultimately if they're violating it, you don't want to be the one paying for it.

Heidi Ellsworth:
Right, right. Wow. And with that whole model increasing, getting your documents, your contracts, your agreements in line is so important. Let's talk a little bit about that about keeping employment manuals, contracts, the subcontractor agreements up to date. And I mean, if you think about it, you may have had a subcontractor agreement in 2019 that is going to totally have to change in 2020 because of COVID. Just share with us the importance of that and how often do you think they should be reviewing their documents and manuals and updating?

Ben Briggs:
Yeah. So, I mean, you have a safety manual, employee handbook. You can have vehicle policy commission agreements, all these different policies and agreements that you want to have in place to, number one, limit your liability. And also number two, just save money. You can save money in so many different ways by having these well drafted policies in place, but with any well drafted policy in the realm of law, that is something that's maybe perfectly enforceable or perfectly comprehensive today. But it might not be entirely enforceable or comprehensive six months from now if the laws change.
You brought up a good point about not only is it important to put these documents in place, but you need to continue to review them and update them as necessary. So COVID-19 was a great example where you could have had the perfect employee handbook, for instance, on December 31st, 2019. And then within a couple of months, it's not obsolete, but it's insufficient now because we have this whole slew of different things, and that's frankly true.
COVID-19 is an extreme example with how quickly things changed, but state legislatures and federal legislatures, they're in session all the time. New laws are coming out somewhat frequently. So I'm typically advising clients to at least once a year review their employee policies, see what's changed, see what's been updated and make sure they're updating their handbook to correspond with those changes. Florida had a new e-Verification work authorization law that went into place earlier this year. That's an example of, again, these policies are changing all the time.
So the handbook that existed before then is now a bit outdated. And you want to make sure that you are keeping up with the law because the law doesn't sit around, it moves. It continues to move. And the smart companies are those that move with it. And a big part of that is getting your policies in place. That's a great start, that's really important, but also getting them reviewed and updated on a regular basis just like you would a vehicle. You want to keep that running well and to keep it running well, you need to pay attention to it.

Heidi Ellsworth:
Right, right. It's so important. Well, kind of taking that one step further too. Other things have happened in this last year, besides COVID. And as we know, there's been just a real awakening to equality and diversity, and all of these things that are going on. And I'm proud to be part of National Women in Roofing and seeing that. So being able to really understand the need for making sure there's no harassment in your company. Making sure that you are following any obviously regulations or laws, but also just the overall culture of diversity. What are you seeing that way in roofing companies?

Ben Briggs:
So, I mean, it's definitely taken on an added emphasis maybe in the last couple of years. And part of that is just looking beyond the industry, just looking at America in general, the "Me Too movement." There's a lot of just focus that's been in the news about different people in positions of celebrity status or just being well-known who have had these issues come up. And it's just kind of, I think, put a spotlight or shined a spotlight on this issue. And it's affected to an extent some of the frequency with which these discrimination or harassment issues are coming up within our industry.
And the two main things to do to try to combat that or to stay ahead of that is there's training. That's one of them. You can try to train your supervisors, management kind of in what to look for as far as harassment goes and discrimination, how to spot it, how to prevent it. What kind of policies to put in place on the front end to hopefully educate people within the workforce, what's appropriate to do or not to do what's appropriate to say, not to say. And kind of how to hopefully limit the instances from arising.
But the second thing to do is have a very clear written policy in place that not only outlines what people are prohibited from doing at your company, but also outlines what to do if you observe one of these things occurring like basically a reporting policy. And having that reporting policy in place. Again, the training is hopefully preventing it from happening. But if it happens, you want to have that reporting policy in place. And one of the main reasons for that from a legal standpoint is for a corporation to be held liable for the acts of maybe just a random crew member, there's case law out there that supports that if a corporation has a clear, well distributed policy that says these things are wrong and improper. And if you observe them, here's what you do.
You report this to this person or if that person you'll have to come reporting it to, here's your second option. And if that's distributed to the employee in question who might be a victim of harassment, and then it's on the employee to go ahead and report that to the company. Because after all, the company can't fix the situation if they don't know about it. So having that reporting policy in place helps you address those situations. And it also limits your liability or your exposure if harassment occurs and it was never brought to your attention. You were never given the chance to correct it.
But again, if you don't have a clear policy. And again, it should be in writing and theoretically it ideally should be signed by the employees of the company so they acknowledge it, they understood it and they received it. But you have a clear policy that says these things are prohibited and if you observe them, here's what you agree to do. You agree to report it to HR. And if you don't feel comfortable reporting to HR, you agree to report it to the second option you have.
And again, if you have that policy in place, hopefully it limits those instances from arising within the workplace, but it also helps you limit your liability in the instance that they do. Because now the employee is responsible for reporting it to you and you can, again, limit some of the liability you would otherwise have in the event the employee never told you about it, and then a year later decides to sue you for what they experienced in the workplace. But they never took it upon themselves to follow the company policies and report it up the chain so that you could address it.

Heidi Ellsworth:
Yeah. And I think by having it in writing too, hopefully that creates a sense of safety. Because I know in the bigger spectrum, a lot of times people are scared to report things because they're scared that they're going to be punished for that. But if it's in writing and they know they're protected by that and it's all right to report it, that does create that culture of not accepting harassment.

Ben Briggs:
Yeah. And the policy that you have in place should include within that same section, so to speak, an anti-retaliation provision where you're telling them, "We are not going to take any adverse employment action against anyone who makes a valid claim of harassment or discrimination." Because again, it is illegal to retaliate against employees for having a good faith report of some sort of awful conduct that they observed in the workplace.
And you basically, you take that anti-retaliation provision that exists in the law already and you include that within your company's equal opportunity anti-discrimination policy where you let them know, "Hey, this is what you do if you observe it. Here's who you report it to." And none of our employees who make a valid report, a good faith report, are going to be in any way discriminated against or retaliated against.

Heidi Ellsworth:
Yeah, that is so important. So one of the things that I've been so fortunate to work with with Trent over the years is his development of the subscription plan for Cotney. And it's really one of a kind. You just don't see anything like this out there. Ben, can you kind of share just a little bit about the subscription plan and why and how important it is for contractors to use it when it comes to employment and labor and OSHA and all the things that you're working?

Ben Briggs:
Yeah. So, I mean, as a quick general matter, the subscription plan that we've developed, you're right. It is very unique to our law firm. Very few, if any, have a similar subscription plan, different packages available for clients. And the idea behind it is it's really just consistent with our general belief that we want to be a partner with our clients. We want to be a partner with you to grow your company. And part of that can be the subscription plans that we offer. And the advantage of a subscription plan is you get within that subscription plan, you get guaranteed services for a flat fee upfront. So you can for the entire year, you can budget to an extent your legal costs and expenses. There aren't surprises. These financial issues that come up when you have this expense that you didn't anticipate.
So it really allows you to to scale and budget your finances when it comes to legal expenses and costs. And then we offer a handful of different packages depending on what you want or what you need. And each package it's almost like when you're bundling your home and internet and phone, that's been around for a long time. We offer a similar thing, but with legal services. So it can be contract drafting. It can be liens. It can be employee handbooks. I-9 audits. It's a whole spectrum of services we offer.
And again, we have different packages available for clients who want to have a collection that they choose to an extent, a collection of services that they get for a guaranteed flat fee. And doing so like I said before, allows them to budget and scale their expenses, but it also allows them to work with us on getting the employment agreements in place they want, the commission agreements they need for their salespeople, for example.
Having that employee handbook, having that safety manual. Having all these different documents in place as well as having the ability to send demand letters to maybe a customer who's not paying properly or recording liens, doing all these different things that are a big part of any business within our industry. And we're there to help you along the way and to do so at a flat guaranteed rate.

Heidi Ellsworth:
That is cool. I think it makes so much sense because with things changing so fast, you need that access. I mean, you work with your contractors day in and day out. So kind of just as a final thought, Ben, I'm going to have you look into your crystal ball, but what are some of the things that you think contractors should really be focused on looking to 2022 and beyond?

Ben Briggs:
Well, I think COVID is hopefully going to start kind of fading. That's my goal, knock on wood. I probably just jinxed us here, but I think that's going to kind of fall into the background a little bit. The material shortage is a big issue people are dealing with right now. And hopefully, again, that's something I'm hoping kind of corrects itself a little bit. But looking to 2022, I think a big issue is going to continue to be a labor issue. My clients are constantly telling me they have a difficulty finding and keeping good workers, good labor. And I think one of those issues going forward now that things are opening back up again, projects are getting going again, and there's a lot of work to be done.
I think that labor issue is going to get even more constricted because there's going to be more work going on. And again, we have the same pool of labor to draw from. And so with that comes a lot of issues such as having employee assigned non-competes or non-solicitation agreements, things of that matter to try to hopefully the training that you invest in your workforce. You're doing so because you want to keep those employees there and you don't want them to leave and start their competing business or go to work for the competitor down the street. So that's an issue. It's been there and I think it's probably one that might continue to increase as we go forward and more work gets done with the same limited pool of employees to choose from so that becomes an issue.
In addition to that, there's a lot of wage an hour issues and that's something that's changing a little bit with the new administration. And the Department of Labor have one. The Department of Labor with respect to wage an hour as well as OSHA, I'm expecting to see a shift with the current administration from where it was the last four years of being maybe a bit more conservative, if you will. Maybe a bit more company, employer-friendly. It might shift to more of an employee-friendly position, which could lead to there being more OSHA investigations, particularly as COVID-19's freed up investigators to travel around again.
They'll be more wage an hour investigations as, again, those Department of Labor investigators are free to move around more and there's a greater emphasis from the department potentially with the new administration on maybe an employee focus rather than the previous administration might've been a little bit more employer-focused.

Heidi Ellsworth:
Yeah. Wow, good thoughts. Wow, great stuff to be looking at for the upcoming year. So much changing. I mean, not just on the COVID and the roofing, but at the administration. Ben, thank you. Thank you so much. I've learned, I'm thinking about some of the things I need to be doing for our business. So thank you for this podcast. It was really great. I'm glad we road tripped over to Tampa today to visit. Any last thoughts?

Ben Briggs:
No, just I hope everybody stays well out there, stay safe. Myself and my firm, we're always available to assist any roofer out there in any way we can.

Heidi Ellsworth:
That is cool. Everybody who's listening, you can find so much information on RoofersCoffeeShop about Cotney Attorneys & Consultants, about their subscription plan, about their consulting, about everything that Ben has talked about today. So please visit their directory online. Listen to the podcast. There are so many great Cotney podcasts as we go Cotney around the globe and in this continuing series. So Ben, thank you so much.

Ben Briggs:
You are welcome. Have a great day, Heidi and everybody listening.

Heidi Ellsworth:
Thank you and thank you everybody for listening. Please join us and listen to all of our podcasts by simply subscribing on your favorite podcast channel or visiting the Read Listen Watch section of rooferscoffeeshop.com to find all the podcasts. Great information, great way to learn. Have a wonderful day. Thank you all.

Megan Ellsworth:
Make sure to subscribe to our channel and leave a review. Thanks for listening. This has been Roofing Road Trips with Heidi from the rooferscoffeeshop.com.