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BUILDERS EXCHANGE OF ROCHESTER, NEW YORK • SINCE 1888

ROBEX NOVEMBER 2018

Christa

Construction

Adding Curb Appeal with the DePaul Upper Falls Square Apartments Online Learning

The Best Content Management System

Combating Workplace Sexual Harassment What You Should Know

Social Media

Building Your Personal Brand


NOVEMBER 2018 Features 10

Help: I need Somebody!

16

Online Learning

22

Effective Risk Transfer

34

Small Business Owners...

40

Social Media

46

The Dreaded I-9

Strategies for Team Building

Shopping for a Learning Content Management System

30

Indemnification and Insurance in Construction Contracts

Do You Have an Exit Plan?

Building Your Personal Brand

What it is and How to Avoid Mistakes

6

A Message from the President

8

A Letter from the Chairman

14

Employee Spotlight

10

Meet Corrine Taylor

New York is Combating Workplace 50 Sexual Harassment

What You Should Know

Project profile 30

4

54

Christa Construction

Project: DePaul Upper Falls Square Apartments

ROBEX Staff and Board of Directors Index of Advertisers

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November 2018 — ROBEX

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ROBEX

NOVEMBER 2018 Volume 2 No. 3

BX STAFF

BOARD OF DIRECTORS

President Aaron Hilger

Executive Committee Chairman Kevin Cannan A.A.C. Contracting

Vice President, Marketing & Operations Kim Gaylord Planroom Manager & Membership Director Corrine Taylor Accounting Manager Taryn Deinhart Research & Communication Manager Mariel Fedde Planroom Reporter Nicole Gissendanner Planroom Coordinator Liz Durkee Executive Assistant Jenna Kraeger

Vice Chairman Dominic Mancini Postler & Jaeckle Secretary Robert Morgan Upstate Roofing & Painting Treasurer Victor E. Salerno O’Connell Electric Company Immediate Past Chair Curtis Peterson Monroe Piping & Sheet Metal Inc. Board Members Traci Adolph Samson Fuel Richard Ash C.P. Ward Inc.

Builders Exchange of Rochester 180 Linden Oaks Suite 100 Rochester, NY 14625 P (585) 586-5460 F (585) 586-1580 info@robex.com robex.com

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ROBEX — November 2018

David Cooper Rose & Kiernan

David Mehalick Harris Beach

Mike D’Hont Western New York Floor Co.

Daniel Mossien Mossien Associate Architects

Anthony DiTucci DGA Builders LLC

Brian O’Shell Ajay Glass

Kevin Foy M&T Bank

Walter Parkes O’Connell Electric Company

Melissa Geska U.S. Ceiling Corporation Ed Kurowski, Jr. The Pike Company Courtney Lafferty JBX Chairman, LeChase Construction Mike Mallon LeChase Construction Mark Mancuso Flower City Habitat for Humanity

The Builders Exchange of Rochester was founded in 1888 by visionaries dedicated to Rochester, New York’s commercial development market. Today, the exchange has more than 600 members and affiliates, and serves the commercial, industrial and governmental construction industry in Western and Central New York. ROBEX © 2018 is distributed three times each year to all members on a complimentary basis.

Timothy Pullis Brown & Brown of Rochester Norbert Rappl Retired 2 Star General Comac Building Supply Randy Sickler SWBR Architects Gary Squires Manning, Squires, Hennig Co. Inc.

Publisher Fahy-Williams Publishing PO Box 1080, 171 Reed St. Geneva, NY 14456 P (800) 344-0559 F (315) 789-4263 To advertise contact Tim Braden at (800) 344-0559, tbraden@fwpi.com

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Catenary Construction was proud to be chosen for the concrete work on the iconic Court Street Apartment Project. After pouring over 16,000 yards of concrete in 2017– and with our new concrete pump truck’s 120-foot boom – we’re ready for any challenge.

Catenary Construction is now renting its pump services for your needs as well. If you can dream it, we’ll make it concrete.

New Concrete and Masonry Construction. Expert Historic Restoration. catenaryconstruction.com 585-454-4140

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November 2018 — ROBEX

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A message from the PRESIDENT

Auto & Homeowners Insurance Commercial Insurance Surety Bonds 491 Elmgrove Road, Suite 2 Rochester, NY 14606

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With a vested interest in your success, trust us to give you the best service possible! Tax Preparation • Full Service Accounting Bookkeeping • CFO/Controller Services Business Valuations ROBEX members receive a complimentary, one-hour consultation.

Call (585)292-1041 to get started. 1200 Jefferson Road, Suite 300, Rochester, NY 14623 6

ROBEX — November 2018

W

e saw a return to a normalcy in the Rochester construction market this summer. Public funding is closer to the historical average, which is a huge improvement from 2016. The private market is still stronger than normal, with multifamily projects continuing to lead the way. Large projects, like Rochester Regional Health, also help round out the market. For 2019, we expect a continuation of the strong private market. There is some uncertainty in the public space, especially for 2020, as programs like Rochester Schools Modernization will slow down. Phase three legislation for RSMP was not pushed by Mayor Warren last year, which may slow that market segment. Moving into 2019 we expect to see significant changes in New York state politics. The assembly will remain in Democratic hands. Rochester’s voice in that chamber will be muted some, with Majority Leader Joseph Morelle giving up that seat to chase congressional dreams. The story is in the Senate. It is almost a certainty that Democrats will take control of the chamber. The changing party label is not the concern – albeit the far left of the Democratic Party does pose concerns for the state economy. The concern is the shift of power downstate. The Senate Republican majority is dominated by Upstate members. A new Democratic chamber will have almost no up-state members in the majority. The shift in power will impact all aspect of state funding and impact the Upstate business climate. We will focus on executive agencies and the Governor’s office to help mitigate negative changes. This September and October, we also got to witness the complete breakdown in national politics. Watching the Supreme Court hearings was the perfect example of why issues don’t move in Washington. When the other side is painted as evil, standards don’t matter or vary by party (e.g. dark money is evil if from Koch or Soros, depending on your point of view), due process is only needed when politically useful and the wildest story is reported as fact (assuming it fits your side’s narrative, ignore it otherwise). It is no wonder that we cannot make progress on substantive issues. How can a member craft a deal on immigration or transportation funding, when the person they need to craft it with is a hateful monster that must be defeated? Words matter. Thoughtful deliberation matters. Protestors shouting down members, yelling in the Senate Gallery, and driving people out of public spaces is mob rule, not democracy. Regardless of one’s feelings on the nominee, the breakdown in civil discourse is a problem for us all. Madison, Jay, and Hamilton shared considerable wisdom at our country’s founding in the Federalist Papers. Today, we are living the notion that “in all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason.” And in Federalist No. 10, factions as a group “united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Today we call factions special interests, associations or advocacy groups. By whatever name, winning at all costs to advance a particular interest is the cancer of democracy. We can, and should, do better. We should hold our political leaders to a higher standard that measures both outcomes and the process of creating the outcome. Perhaps there is grace in knowing that Ruth Bader Ginsberg and Antonin Scalia were the best of friends. They argued fiercely and enjoyed spending time with each other – sharing a love of opera, and family get-togethers. They did not tear each other down, nor rip apart the institution in which they served. I will certainly be thinking about that this November – and hope you do as well, regardless of where you fall on the political spectrum. Aaron Hilger, President Builders Exchange www.robex.com


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November 2018 — ROBEX

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A letter from the CHAIRMAN

A

CONSTRUCTION CONSULTING “Your BEST Defense in the Construction Industry” ESTABLISHED IN 1992 491 Elmgrove Road, Rochester, NY 14606

585-647-9350 loewkebrill.com 8

ROBEX — November 2018

nd here we are again – October! Another busy construction season and the nice summer weather are behind us. I hope all of you enjoyed the nice weather as much as I did! Fall is beautiful in Upstate New York and winter brings holiday cheer. Seasons are wonderful, if you choose to embrace them. Networking has always been a big part of my involvement with Builders Exchange. It was great to see many of you at the annual clambake. The weather, music, and food were fantastic this year – great job to the Builders Exchange staff for a job well done. Thank you to all the sponsors who made the event a success, too. The equipment that Platinum Partner Admar Supply provided made it a true construction event. Hopefully I’ll see you all there next year, too! The Exchange Board and staff are always working on new programs to help support our members. I’m excited about our next new product offering from the Builders Exchange team – website and social media development! Having an updated website and being present on social media are important to all businesses today. Not all businesses have the time, bandwidth or knowledge to do the work themselves. That’s why Builders Exchange decided to launch the product. For website design, they have a couple of packages depending on the size and complexity of the website. For social media, you decide what social media platforms you’d like your company to be on and they do the rest – from creating the posts, to posting them and following the analytics. Builders Exchange can really become your one-stop shop for website and social media. The Builders Exchange Board is excited to welcome two new members – Anthony DiTucci from DGA Builders and Mark Mancuso from Flower City Habitat for Humanity. Mark has been on the Board for the last few years as the JBX Board president. He is now moving up to a full Board seat. Anthony is a brand new Board member. He has more than 20 years of construction management experience in various organizations and his knowledge and leadership will be very beneficial to the Builders Exchange Board. I’d also like to say thank you to two members whose terms have expired and are moving off the Board: Richard Camping, O’Connell Electric and Rick Kozyra, ARK Glass and Glazing. Both of these men have served on the Board for many years and contributed greatly. Each served as chairs of the Board and both were active in JBX. Thank you for being so dedicated to our industry and agreeing to be members of the Emeritus Board! Finally, I would like to let you know that the Builders Exchange is growing our association management business. We have begun working with Digital Rochester and look forward to helping the tech industry in the Finger Lakes Region achieve its goals! There are many possible synergies between Digital Rochester and Builders Exchange, so look forward to joint events in the future. Association management has long been a part of our DNA. We started working with CIAR in the 1990s, and since 2003 have added relationships with two SMACNA chapters, DBIA, CFMA and the Roofers Industry Fund. These relationships have allowed us to grow our resources and develop staff so that we can provide the best possible service. I hope you enjoy this fall and the coming holiday season! Kevin Cannan A.A.C. Contracting www.robex.com


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Leadership

by Gwen Mazza, CEO enSpirit, llc

Employers and owners know that there are a lot of issues within the organization. However, they do not necessarily know how to identify and solve them. This article is to assist those considering the services of a coaching organization (C.O.) for executive coaching, team building and strategic development. The article was initially constructed to assist other coaching companies help others, but today it is offered and modified for you, the consumer. I’m inviting you to complete your own pre-work before these professionals begin their pre-work on you. We are hoping to share with you what you need to be looking for while gaining clarity around the activities that effective coaching organizations follow. Here’s to making sure you use your company’s time, money and energy wisely. Start by asking yourself, “As the decision maker for my company, what am I looking for in an executive coaching firm? What do I need to be looking for in terms of assessment process, strategies and tools that an effective coaching organization could employ to assist us? How will couches be able to clarify and help us identify our deeper challenges? How does this coaching organization formulate its plan and what framework do they use to get us where we 10

ROBEX — November 2018

want to be?” This step-by-step process may offer you a little insight as you traverse your way through the finding-a-coaching-organization process. Step 1: Pre-work is a Must When a company has issues within their organization, and for a coaching team to assist them in identifying in solving these concerns, the first recommendation is the pre-work phase. The first responsibility is to be organized. The coaching team needs to have come to that meeting having completed their research and background on your company. Coaching organizations can streamline their own business identification process by having easy access to a “new company folder” project outline template. The template might be something they physically take with them to the meeting for notes, or an internal framework within their mind. This allows them to source important points for documentation and recommendation purposes later. A template may include 1. identifying data for the meeting; 2. current company status; 3. desired outcomes; and 4. activities and methods for reaching the outcomes.

Pre-information will be in place within this form to the point the research was available and then we allow plenty of room for additional information gained during the up-coming meeting. Step 2: The great conversation The coach is now ready to sit with you and have a great conversation. Within that conversation, a coach’s responsibility is to listen, clarify and document. The conversation is our next framework. This is the time they will begin by “framing” the “layout” of what a company actually needs or might be looking at. As stated earlier, it starts with doing due diligence and background work prior to this meeting. The C.O. needs to know who your company is, the size of the company, and what your history has been at minimum base level. When the C.O meets with your company, they can begin to listen to further expand their basic understanding of the company. Good coaching requires listening more and talking less. It will be within this listening www.robex.com


I Need Somebody!

that the company expresses “themes” of concern or confusion within the organization. Most likely there will be three or four major points that the coach can reflect back to you for clarity, and offer possible options for assistance. Please note: a coach should not rush the process and instead, match the rate and pace of the company’s decision maker and effectively communicate with him or her as best as possible, right from the start. Developing a plan that the C.O. would recommend will take time, attention and skill. Step 3: Construction The C.O. is now ready to return to the office and review the data. Based on the information your company has shared, the C.O. can reflect on their notes, formulate the initial layout, and identify the varying platforms within their business www.robex.com

framework that would best serve you. “Tool” selection will be determined based on your needs, as well as the options the C.O. has mastered. As an example, DISC is a great base tool. It’s used in organizations throughout the world for enhancing communication. As a single tool, it has much to offer. In addition to enhancing communication, it can assist organizations in reducing judgmental behaviors. Its damaging impact is something we are all too familiar with. The application and mastering of this one tool can be extremely powerful. The work is not in the tool, but rather in the implementation and integration of any coaching tool. Before you choose a C.O., assess

whether the coach knows or has the capability to share these instruments in such a way that they become building blocks and foundations for the recipients of the material and the overall organization? An integral component on the part of the C.O. is clarifying to your company that these are informational tools, no matter which ones you embed. They are intended to assist individuals and companies to develop, grow and enhance levels of functioning, and not tools created to further label and target team members. If the coach utilizes them November 2018 — ROBEX

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Leadership

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ROBEX — November 2018

to separate and pit team members against each other, I encourage you to reconsider your engagement of that coaching firm. Adding further to your vetting of a C.O., it is important to note that they, as coaches, can only take their potential company as far as they have gone. So, if they would like to implement DISC that’s a great start. You may want to begin to explore Driving Forces, EQ, The Growth Curve, Strategic Planning, Vision Values, Mission and Purpose work, Leadership Programming, Executive Coaching or simply some basic training and workshops, just to mention a few. Please note that this is NOT a service where one size fits all! No two companies are the same. Each one has its own growth trajectory, systems that work, and tools it utilized prior to this C.O. showing up. In other words, please do not throw out all of your tools from the past. If the C.O. tells you it is a must, please show them the door. They most likely can sell you a product, not integrate from your rich history and assist you through true evolution. Do they understand and articulate their own bandwidth? What is your company asking for? If it’s slightly out of their skills, are they willing to develop those skills within themselves or refer you to someone who has them? Step 4: Revealing and Communicating a Plan Having reviewed your company’s needs and matched them with a plan that is grounded within the C.O.’s operating business framework, laid out the planning process, it is time to reconnect with your company again. It’s important that each coach has an opportunity to create and reflect on their own business framework. Within this the C.O will have their own clarity and be able to create, communicate and guide the map you are in need of. What is the (C.O.) framework that they know will guide and assist individuals and/or organizations in being healthy and high functioning? Can they effectively share this framework with our company in a way that we can understand the basics of what will be impacted, addresses and developed? Step 5: Moving Forward Upon approval, the C.O. as a collaborative entity is ready to execute the plan as agreed upon and assist the organization in exploring, learning, implementing, and integrating the information sourced from the reports, trainings, coaching sessions. As a coach, my practice is not to sell the tools. Rather, it is to educate those participants in learning about, understanding, and utilizing the information in a way that allows for a healthier and higher functioning organization! Tools and results sitting on the shelf are worth literally very little. Tools, processes and systems implemented and integrated into an organization create incredible cultures, marked results, and will have a much better return for their people and the organization! For more information, visit enSpirit7.com. www.robex.com


Employee Spotlight

meet

Corrine Taylor Membership Director & Planroom Manager

I

have been with Builders Exchange since 2011. I moved to Rochester in 2008 from Red Creek, New York, in hopes of finding more opportunity here. I met my husband in 2009 while working at Lowes. My husband and I are proud parents of three beautiful girls: Rylee, Teagan, and Bailey. We are an active family who enjoys participating in Cobras Futbol Club and camping. Our favorite holiday is Halloween. We recently took the kids to Disney World for the first time, driving straight through from Rochester! We had the most amazing time ever! Before working at Builders Exchange of Rochester, what was the most unusual or interesting job

you’ve ever had? When I was a teen I worked at a bait farm where I would count and bag salted minnows in an unheated pole barn in the middle of the winter. In the spring and summer I would count live worms. What have you gained from working at Builders Exchange of Rochester? (Twenty pounds? Ha ha.) I’ve gained an appreciation for the process involved in commercial construction. What aspect of your role do you enjoy the most? The customer service aspect; I really enjoy helping members! What book did you last read? The Glass Castle by Jeanette Walls What is your favorite part of working for Builders Exchange of Rochester? Choosing one aspect is tough! We always have food here… My favorite part is that I want to come to work every day. We have a great team and they make the day enjoyable!

Personalized quality service that is beyond comparison • Accounting Services • Audits, Reviews and Compilations • Bookkeeping/Write-Up • Cash Flow & Budgeting Analysis • Financial Statements • Forensic Accounting • Business Consulting • Business Entity Selection • Business Succession Planning • Business Valuations • Buying & Selling a Business

• Debt & Financing Services • Fraud Prevention & Detection • Retirement Planning • Asset Protection • Bankruptcies • Expert Witness Services • Litigation Support • Mergers & Acquisitions • Estate & Trust Tax Preparation • IRS Representation • Sales Tax Services

Errol Jaufmann • Rick Centola Errol@j-ccpa.com • Rick@j-ccpa.com 585-248-3630

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How do you define success? Success to me is loving what you do and feeling like you made a difference. I feel successful when I have helped others succeed. If given a chance who would you like to be for a day? I’m not a huge fan of any particular celebrity or athlete so this may sound corny. I would like to be my older brother for a day. He’s a Chief in the United States Navy; he has lived in Germany, Japan, Texas, Maryland, and California. I think it would be neat to have a better idea of his career. What are three words to describe Builders Exchange? Professional, Efficient, and Valuable Partner. www.robex.com


Rochester Schools Modernization Program www.rsmpnews.net

(585)512-3820

Monroe High Band Room

School No. 7 Cafeteria

Children’s School of Rochester No. 15

School No. 16 Atrium

The Rochester Schools Modernization Program has implemented a comprehensive Strategic Plan to bring the District’s learning environments into the 21st Century.


Online Learning

Learning

Shopping for a Content Management System

and Online 16

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Training www.robex.com


by Joe Graves, COO, CypherWorx Inc.

I

f you had suggested using a learning content management system (LCMS) or online training 15 years ago, you would have been met with resistance – “It won’t work in my industry.” Today, it can (and does) work for everyone, everywhere. Why have so many companies jumped on the LCMS bandwagon? An LCMS allows managers and supervisors to easily track employee training progress. Employees log in, take a course, and automatically that information is stored electronically. Remember using sign-in sheets for inperson training events? They’re now a thing of the past. Ever struggle to find time to schedule in-person training? How about gathering bored employees into a small room with a bored trainer using old PowerPoint presentations? ELearning companies now provide solutions to these difficulties and provide active, engaging content; repeatable as an employee needs it to be.

What are the numbers?

In 2015, Gurufocus.com reported corporate training as a $200-billion industry, and online learning was expected to grow to $107 billion. Seventy percent of eLearning companies are in the United States and Europe – there are more than 3,000 e-learning firms in Europe alone. Companies making the jump to eLearning have on average found a 50-percent productivity boost and nearly 50 percent in savings. Perhaps the most significant contributing factor to these benefits is that employees

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November 2018 — ROBEX

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Online Learning and a LCMS, we know a thing or two about what to look for. If you are going to look seriously into online training, then here are some questions to keep in mind while shopping. 1. Can I create my own training? Do you have PowerPoints that you’ve been using for years with great content? Then look for a LCMS that allows you to easily upload that content. Even better, look for a LCMS that lets you upload your PowerPoints, record some audio to accompany the slides, add some training videos if you have them, create a quiz to assess understanding, and finally – track it all electronically.

retain 60-percent more content through eLearning. Shiftlearning.com’s “Facts and Stats” on eLearning states that IBM saved approximately $200 million after switching to eLearning. If cost savings is part of your company’s goals, you might just consider eLearning.

What do I look for in an LCMS?

Of course, since CypherWorx offers both eLearning

2. Does the LCMS provider offer instructional design services? Imagine you have a marvelous idea on something you’d like your employees to know, but you aren’t a training guru. Look for a company who can do that for you. eLearning software and talented instructional designers can bring your training vision to life. With engaging, entertaining, and thoughtful course design, you will have a product that your employees will want to use over and over. continued on page 20

Sheet Metal Workers’ Local Union # 46 244 Paul Road Rochester NY 14624 (585) 254-9151 www.smw46.com

Fabricators and Installers of Metal & Air Systems: HVAC Systems Architectural Metal Work • HVAC Service & Controls Testing & Balancing • Residential, Commercial, Institutional & Industrial “Quality Craftsmanship through training and high safety standards.” Servicing the Upstate New York Counties of: Livingston, Monroe, Ontario, Seneca, Wayne and Yates. Troy R. Milne – Business Manager Tommaso Piccininni – Business Representative

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Mark Miller – President & Training Director Patrick T. Skrip – Marketing Representative

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Online Learning continued from page 18

3. How do your employees learn best? This is important! More and more people are relying on their phones for everyday tasks like making reservations, getting directions, and especially learning. Is the LCMS you are considering mobile-friendly? Are their courses designed to work on a mobile device equally as well as they do on a computer screen? Is registering and logging on a simple process? If you still plan to do some in-person training, can the LCMS track both live training and mobile learning? 4. What about reporting? Have you thought about how you need to report on what courses your employees have taken? Is there an easily downloadable transcript? Can you put people into specific reporting groups? Can you set up administrators for each of those groups? Can you add additional training that employees have taken outside your organization

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so that all your training records are in one safe and secure place? 5. What kind of support can you expect? Not all of us are computer experts, even in this allelectronic-all-the-time world. So, find a LCMS provider with 24-hour ticketing so that if you have a concern at 2 a.m. you know just where to go to get answers. Need help making the jump to eLearning? Look for a company where experts can assist with the on-boarding process and help you get the most out of your LCMS and eLearning. Considering these questions will put you on the advanced track towards eLearning. Good luck on the training journey and discover for yourself the benefits of eLearning! Interested in learning more about eLearning and performance solutions? Contact Joe at CypherWorx at 585-268-6184 or jgraves@cypherworx.com.

www.robex.com


Legal Update

e v i t c e Eff

Risk Transfer Indemnification and Insurance in Construction Contracts by Kevin T. Merriman and David M. Knapp

P

roject owners, contractors, and subcontractors allocate risk though insurance and indemnity provisions in construction contracts. Typically, the objective is to transfer risk downstream, ultimately to the subcontractors who perform the work. Both indemnification and insurance can be used to achieve the same result, but each confers different rights and can result in different outcomes. 22

ROBEX — November 2018

Understanding how these risk transfer methods work together will help to prevent possible issues upfront, before a loss occurs.

Insurance

Construction contracts typically require a downstream contractor to purchase insurance that protects itself and the upstream contractor from losses arising from the work. In particular, the downstream

contractor often is required to name the upstream contractor or owner as an additional insured on its policies. As an additional insured, the upstream party is entitled to defense and indemnity for claims arising from the downstream contractor’s work. Thus, when properly done, the downstream contractor’s insurer assumes some of the risk of losses under the contract. Additional insured coverage www.robex.com


under the downstream contractor’s policy is determined by the policy, not the construction contract; however, the contract is important in determining whether an upstream contractor is an additional insured in the first instance. Several elements must be met for the coverage to apply: (1) the downstream contractor must have agreed to name the upstream contractor as an additional insured in a written contract (sometimes with the upstream contractor);

(2) the contract must have been executed prior to the loss; and (3) the upstream contractor’s liability must arise from, or be caused by, the subcontractor’s work. It is important to ensure that all of the formalities necessary for additional insured coverage have been met. For example, is there a written contract between the parties? Bid documents alone might not be sufficient. Was the contract signed before the loss occurred? Does the contract require additional insured coverage for the upstream contractor? A general promise to purchase insurance is not enough. Also consider whether the scope of additional insured coverage is appropriate. There are many AI endorsements on the market, and coverage has become increasingly more restrictive. Does the AI www.robex.com

© Gene Avallone Photography

© Steve Labuzetta Photography

®

© Gene Avallone Photography

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205 Indigo Creek Drive | Rochester, NY 14626 | lechase.com November 2018 — ROBEX

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Legal

David Knapp

Kevin Merriman

endorsement cover only ongoing operations, or does it also include losses arising from its completed work? Is the upstream party covered for liability “arising out of” the downstream contractor’s work, or is it limited to liability “caused, in whole or in part, by” the downstream contractor’s work? “Arising out of”

endorsements confer coverage to an additional insured even if the downstream contractor was not at fault. Other endorsements require that the loss be “caused, in whole or in part, by” the downstream contractor, so that the upstream contractor would not be covered for its sole negligence.

To effectively shift risk downstream, it is also important to consider how the upstream contractor’s own insurance will respond to losses arising from the downstream contractor’s work. The priority of coverage generally will be determined by the terms and conditions of the policies; however, the construction contract should specify that the downstream contractor’s coverage is primary and will not contribute with the upstream contractor’s other insurance. Finally, construction contracts typically require Certificates of Insurance as evidence of coverage. Such certificates, however, may not be sufficient to ensure compliance, as the terms of the actual policy defines the coverage, not what the certificate says about the policy.

Indemnification

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Risk also is allocated through indemnity clauses, under which the downstream contractor agrees to indemnify and “hold harmless” the upstream contractor for certain losses. Such clauses take one of three basic forms: (1) the downstream contractor indemnifies only for its own negligence; (2) the downstream contractor indemnifies for all liability except for the other party’s sole negligence; and, continued on page 26

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Union Carpenters & Contractors

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Legal continued from page 18

(3) the downstream contractor indemnifies for all liabilities. Many states, including New York, limit the scope of indemnity in construction contracts. Such anti-indemnity statutes prohibit an upstream contractor from getting indemnity from a downstream contractor for the upstream contractor’s own negligence. Careful drafting can avoid having an indemnity provision being rendered completely unenforceable. Finally, indemnity provisions are only as good as the indemnifying party’s financial ability to pay. This is where well-drafted insurance procurement provisions are critical. Assuming the construction contract requires the downstream contractor to purchase general liability insurance with contractual liability coverage, the downstream contractor’s insurance should cover its indemnity obligations under the contract so that the downstream contractor can pass through its obligation to pay defense and indemnity to its own insurance.

Insurance and Indemnification Compared

To properly allocate risk, it is important to understand that insurance and contractual indemnification are not co-extensive.

Additional insured coverage may afford greater protection than contractual indemnity. Depending on the AI endorsement, coverage might be available regardless of the downstream contractor’s fault, provided the claim was connected with its work; the additional insured might even be entitled to coverage for its own negligence. Also, the additional insured may be entitled to defense costs paid up front, and in addition to the limits of the policy. To effect the desired risk transfer, however, the additional insured coverage must be primary to and not contribute with other available coverage. Contractual indemnification can fill in the gaps where insurance coverage is not fully effective; however, indemnity agreements often are limited in scope by anti-indemnity statutes, require determinations of fault, and typically give rise only to a right of reimbursement, not first-dollar protection. Ultimately, to achieve effective risk transfer, it is critical to understand the terms and conditions of the construction contract and the insurance policies of the parties, and how each interacts with the other. With a proper understanding of each, owners and contractors, whether downstream or upstream, can properly protect themselves and avoid costly issues before they arise.

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Laborers’ International Union of North America

Local 435 Daniel Kuntz / Business Manager & Secretary-Treasurer William Steve Jr. / President Robert Picardo / Vice President Carmen Serrett / Recording Secretary Michael Gay / E-Board Member Ace Roundtree / E-Board Member Clint Dunn / E-Board Member

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November 2018 — ROBEX

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Project Profile

DePaul Upper Falls Square Apartments

C

hrista Construction LLC is one of the largest construction management companies in New York State. The company believes that a strong onsite team coupled with timely, accurate, and reliable information is the key to a successful construction management project. Recently, Christa teamed with DePaul Properties, a progressive not-for-profit organization founded in 1958. DePaul is committed to providing quality services such as assisted living programs for seniors; residential, rehabilitation and support services to persons with mental illness in recovery; addiction prevention and support programs; vocational programs and affordable housing. For the biggest project, in terms of both size and cost, DePaul Properties has undertaken to date, Christa Construction is the construction manager and general contractor. The project, located in City of Rochester, on the corner of Hudson Avenue and Cleveland Street, is the DePaul Upper Falls Square apartment complex. Together with SWBR as the architect, M/E Engineering as the mechanical 30

ROBEX — November 2018

engineer, and Parrone Engineering as the civil engineer, the design was formed. The project consists of two apartment buildings across from each other that create 150 units, both studio and one- and two-bedroom affordable housing apartments, for income-qualified residents. Building A, the larger building, includes 114 units. Building B includes 36 units. The project has created two unique standout buildings for the area. The mix of siding colors and stained-glass siding gives the exterior great curb appeal. Each building has its own community room with a private kitchen. The rooms are visible from Cleveland Street at night thanks to special lighting that creates a mix of vibrant colors displayed through glass walls. Christa Construction’s Senior Project Manager, Jay Weaver, oversaw the construction management from start to finish. The DePaul Upper Falls Square apartment complex was officially completed on October 18, and was turned over to DePaul five months earlier than what was projected by the contract schedule. “By

Client Satisfaction Through Quality, Service and Value


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Project Profile constructing Building B before starting on Building A, interior trades could start their work earlier than anticipated, which helped save months on the schedule,” explains Jay. “A mild fall last year also allowed the wood framing to continue on Building A with little to no holdups due to the weather.” One of the biggest challenges Jay and his team faced was installing the roof on Building A during the winter. Whenever there was a break in the weather, installation continued as far as possible until the next snow event or cold snap. Another challenge was working in the tight spaces that the three- and four-story buildings sit on. “We managed to get through it but these factors were very challenging,” Jay adds. DePaul Upper Falls Square apartment project was backed by Rochester city representatives who had the Upper Falls area on the top of their list for needing affordable housing options. Approximately 75

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residents will be offered services under a Supported Single Room Occupancy program, a noncertified New York State Office of Mental Health program. The long-term or permanent resident supportive housing services help residents live successfully in the community. The completion of the apartment complex is a step in the right direction for reviving a very distressed neighborhood. Hopefully, it will make the area a safe place to live, and pave the way for new businesses – something DePaul has seen with similar projects it has undertaken. Christa Construction LLC is proud it was involved with such an important project in rebuilding the Rochester community. For more information about Christa Construction, LLC please call 585-924-3050 or visit christa.com. To reach DePaul, please call 585-426-8000 or visit depaul.org.

November 2018 — ROBEX

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Financial Planning

Do You Have an

Exit Plan? by Orian W. Wilber, Jr., CLU

F

or most small-business owners, your family and your business are the most important things in your life. Generally, the business provides the resources that allow the family to grow, prosper, and take their part in the community. While most businesses start out with a business plan addressing business structure and operations, they overwhelmingly miss one of the most critical and complex issues a business owner will face. 34

ROBEX — November 2018

According to the Small Business Administration only 30 percent of small-business owners have done any kind of succession planning. As previously stated, the business provides the income that makes everything else happen for you and your family. Therefore, it would make sense to have a plan in place to make sure that the value of your business would be protected, and that it would be continued, either by family, hand-picked management, or another party of your choosing. Several events can trigger the

need for having an exit plan/strategy in place now: death, disability, poor health, and retirement. The first three events could happen at any time and significantly affect the value of the business and, therefore, the financial status of the family. Retirement is probably the most complex event and can require a considerable amount of time. It could take five years to develop a satisfactory plan and begin implementation, so time is definitely of the essence. The objective of an exit continued on page 36 www.robex.com


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Financial Planning continued from page 34 By this time, you are beginning to get a picture of an exit plan that will meet your family’s specific objectives. The third step involves not only passing your business and/or other assets to the next generation, but also your family values. Sometimes this is missed by some exit strategy plans so it is important to take time to focus on this issue. The values issue also relates to the transfer of the business to an outside party. Will they continue the business values that you have spent a lifetime building? Often the family and the business are deeply involved in the community and wish that not only the business continues, but also the legacy of community involvement. Without an exit strategy that assures the

strategy is to provide a plan for the continuation or transfer of a business at a triggering event in a relatively seamless operation. The first step is to begin visualizing how each of the triggering events mentioned previously would affect your family and your business. This is something you can do now when you have a few spare moments and as you begin to develop your thoughts, write them down. See, you’ve already started to develop your exit strategy! The next step is to involve your spouse; sharing your thoughts with him or her and asking for their thoughts. Although your spouse may not be active in the business, he or she will have to live with the results. Therefore, spousal input is important.

business will continue smoothly in the case of a triggering event, that legacy could be at risk or even lost forever. With these thoughts in mind, you are ready for step four: to select an advisor that can help you draw all these thoughts and feelings together, and also help you prepare for sharing your thoughts with your children. Your exit plan is going to affect their lives as well as yours, especially if the business will be transferred to one or more of them. Their input is important to the plan because their comments will uncover their aspirations. For instance, do they want to be a part of the business or do they want to pursue another career path? A family meeting or series of meetings may be necessary to sort through continued on page 38

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Meet

Leeann

Graduated from Alden High School Lives in Wolcott, NY 30 years of experience Loves to work in her garden Has worked on hundreds of local construction projects Enjoys vacationing with family to Myrtle Beach

Leeann is happy to work for a union contractor that is a member of the Construction Industry Association of Rochester. When you hire a union contractor, you’re working with the industry’s most knowledgeable and highly skilled workforce that will deliver the highest level of quality workmanship, while ensuring your project will be completed on time and on budget. It all adds up to a contractor partner that is committed to providing the best return on your project investment. See what hiring a union contractor can do for your next project. Visit ciar.biz.

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Financial Planning continued from page 36 the various issues that arise, depending on family dynamics. It is critical to note that this step may be the most difficult, but if properly approached it can have an extraordinary effect on the family and the business. It can often stand in the way of developing a plan because it is natural to want to avoid discomfort. However, avoidance can often lead to greater discomfort later on. It also can end the exit planning process and seriously impact the family’s future financial welfare and legacy. A similar approach is used when the business is being transferred outside of the family. Instead of a family meeting, a business planning meeting would be

held to determine the most efficient method of transfer that will assure the success of the business. The previous steps would remain the same. The final step is to develop a basic draft of your plan with the help of your advisor, review it for any other concerns and possible changes, and arrange a meeting with your other financial professional to fine-tune and implement your exit plan. As you can see, a great deal of time and effort are needed to develop a viable exit plan that will meet the needs and objectives of the family. The benefits for the family are a seamless transfer of the business, time to groom and

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evaluate the successors, and make any adjustments. It will also provide time to establish the successors with customers, vendors, and banking relationships, as well as relationships with your other financial professionals. In addition, it strengthens the transfer of your financial assets, as well as your values, to the next generation of owners and to the community. Orian Wilber is founder of Fortress Financial Services LLC, a firm focused on business and Estate-planning services for families in construction-related businesses. He can be reached at orian@fortressfinancialservices.com.

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Social Media

by Kim Gaylord

M

any people today have multiple social media accounts. In fact, there are more than 2.7 million active social media users around the world. By 2021, there are expected to be over 3 million people using social media. One thing many people don’t think about on social media is their personal brand. Everyone has a personal brand, whether you realize it or not. By taking control of your personal brand, you ensure that people see what you want them to see when they Google you. By definition, “personal brand” is what other people say about you when you leave the room. It’s your 40

ROBEX — November 2018

professional reputation. It’s how you present yourself online and offline to potential clients, customers and employers. The right personal branding can help you to establish yourself as an expert in your field, a thought leader or an influencer. When there’s a promotion in the works or when you’re actively seeking a new role, employers are likely to Google you, and if you’ve taken control of your personal brand, you’ll dazzle them with your professionalism and your position as an authority in your niche. Here are some steps for building your personal brand online.

Step 1 – Update Social Media Accounts Decide what social media accounts are important to you and focus on them. It’s better to have one or two social media accounts and post regularly than to have 10 accounts and never use them. Make sure your personal information is correct including name, title, company name and location. Delete any old accounts that you are no longer using, and remove any “questionable” content or pictures from your past that don’t have a positive effect on your image.

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Step 2 – Set Goals

Social Media

on

What do you want to be known for on social media? Without goals, you won’t achieve branding success and your posts won’t be useful or influential. Some examples include being a thought leader in your industry, being a movie critic/ reviewer, being known as “an expert” on craft beers in your city of residence. To establish goals, look at people you admire and see how they portray themselves online. What do you like about them? What don’t you like about them? Use them as a guide and develop goals from there. What you want to be known for often doesn’t match up with what you are known for today and that’s okay! Growth is important in all areas of your life, including online.

Step 3 – Engage Regularly Building a brand takes effort and should be treated like a job. You should be posting and sharing regularly, yet not over posting – the sweet spot is three to four times per week for individuals. Can’t find content to post? Use services like Google Alerts or Feedly. There will be times you don’t post and that’s okay! Find a pattern that works for you. A great way to post is to utilize posting tools like Hootsuite or Sprout Social.

Step 4 – Create Original Content Reposting other content is great, but it’s not all you should do to build your brand. Share content you’ve written to demonstrate your expertise related to a goal, like publishing your own achievements November 2018 — ROBEX

41


Social Media and sharing tidbits about your personal life – topics like travel, hobbies and food are all acceptable. Post articles you have written and describe projects you have been associated with (provided your employer is okay with that).

Step 5 – Diversify Your Content Create a strategy/calendar that helps prevent posting the same types of articles. Articles aren’t the only thing you should post. You gain credibility with your followers when you share different content, so don’t forget to include: • videos – links to videos help change your interaction with your followers; • images – post an interesting image to start a conversation; and • questions – post a question to your followers to engage them in a conversation.

Step 6 – Find and Join Groups

Facebook and LinkedIn offer opportunities to join

groups focused on your industry or topic of interest. Don’t be afraid to join the conversation! Make your voice heard! Groups can develop your personal brand by giving you confidence, developing your leadership skills, helping others, expanding your knowledge, getting ideas, making friends, and discovering new opportunities. Ask questions! Challenge a conversation! If you’ve found you’ve joined too many groups, cut back and focus on the ones that are important to your personal branding goals.

Step 7 – Keep it Positive Until now, we’ve reviewed some things to do on social media to develop the best brand for yourself. Do you know what not to do? In addition to your personal brand, your social media interactions and content is a resume of your work, a reflection of your professional attitude and overall personality, so avoid posting inflammatory religious or racist comments. Be cautious with political comments that others many find offensive. If you are concerned with the ability to voice your continued on page 44

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Social Media continued from page 42

opinions how you wish, consider creating a separate social media account for private use. Keep the private page for just family and friends.

Step 8 – Grow Your Network

Don’t be afraid to grow your network across social media. Import your contacts from Outlook, Gmail or your phone into your social media accounts to learn how many connections you are missing. In addition, when you meet with someone new, connect with them on the appropriate social media accounts. While adding connection is preferred, don’t be afraid to un-connect with contacts who don’t fit your goals.

Step 9 – Audit Your Personal Brand

A common question is, “How do others see me online?” The answer is easy: search for your name online. To make sure you are receiving the same results as

someone else, clear your browser’s cache or open a private browsing window. To increase the odds of finding yourself, use your employer name, hometown or other information. Then fix any errors and remove unwanted posts. Take note of others who pop up with the same name. How can you make yourself stand apart from them? Create a Google Alert for your name to notify you when someone creates a post that includes your name When polled, more than half of Americans have reported that they have not monitored themselves online. Only 22 percent find that the information appears exactly how they want it to. Creating and maintaining a personal brand on social media is not easy. It requires thought and research to be successful. Think long term and take note of what’s working and not working, and then adjust as necessary. Don’t be afraid to let your personality show through. Lift others up in your posts, share their posts and thank them. Remember – no one is perfect.

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Human Resources

The Dreaded

by Jennifer Pawlak, I-9 Coordinator at Paragon Compliance


A

s anyone who has ever worked for any company knows, the first few days of a new job are filled with paperwork, paperwork, and more paperwork. Amid the excitement of the newness exists filling out your W-4 and direct deposit form, setting up computer passwords, finding out where the coffee is, and the dreaded I-9. The what? Form I-9 is the United States Citizenship and Immigration Services’ Employment Eligibility Verification form. It is used by all employers (with more than one employee, across the country) to verify the identity and employment authorization of individuals hired for employment in the United States. It is completed by both citizens and noncitizens. Often cited as one of the most complex two-page forms

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There are 50-plus fields that can be completed on the I-9 form, so the possible combinations of errors is endless. Here are just a few examples of what constitutes an error: • Forgetting to input a birth date • Failure to sign or date a form • Missing address of employer • Using incorrect documents • Citing incorrect government agencies in Parts A, B, and C ever made, it is not only a dreaded required form, but it also carries with it steep penalties for non-completion or incorrect completion. The government is increasing worksite enforcement five-fold this year. While the federal government routinely conducts worksite investigations to uphold federal law, it is currently carrying out its new

commitment to increase the number of I-9 audits. The effort is designed to create a culture of compliance among employers by generating civil fines to encourage compliance with the law. Audit activity is less about combating worker exploitation, illegal wages, child labor, and other illegal practices, and more about generating fines.

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Human Resources

Worksite enforcement and investigations are led by Immigration and Customs Enforcement’s (ICE) investigations unit, Homeland Security Investigations (HSI). HSI “is a critical investigative arm of the Department of Homeland Security and is a vital U.S. asset in combating criminal organizations illegally exploiting America’s travel, trade, financial and immigration systems.” Since January of this year, HSI has initiated more than 5,200 I-9 inspections, up from 1,360 the entire previous fiscal year. This is part of

the government’s commitment to increasing worksite inspections 400 to 500-percent annually. What’s more, the average penalty per form is $1,862, and not having an I-9 on file means even more serious penalties. A company with 1,000 employees could be facing a $1.8M fine just for having one error on each form! The construction industry is a major target for this type of audit activity. As you can see, seemingly innocuous mistakes can end up costing your company a hefty fine

that is completely avoidable. Historically, ICE and HSI have concentrated on businesses with high turnover and seasonal workforces. The construction industry is frequently targeted, regardless of number of employees. If you don’t already conduct regular – at least yearly – audits of your I-9s, you should start to do so right away to avoid costly penalties. Contact Paragon Compliance today to ask about the services we offer to help keep your company in compliance and out of the headlines. Be prepared for when ICE comes knocking on your door. At Paragon Compliance, our team has helped a wide array of employers tackle the often daunting tasks associated with Affordable Care Act compliance, alongside I-9 compliance, and sexual harassment training. Call us at 585-348-5020, or email clientservice@paragoncompliance llc.com.

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WE DELIVER CONCRETE ADVICE Bonadio’s Construction Division serves over 250 clients in the construction industry throughout New York State and beyond.

From taxes to wealth management to succession planning, construction company owners often find substantial overlap between their professional lives and their personal financial plans. We’re well versed in helping you navigate the complexity, look out for your business and your heirs, and protect everything you’ve worked for. The specialists on our team include, CPAs, tax specialists, valuation experts, engineers, CCIFPs, CITs, Certified Fraud Examiners, and Certified Exit Planning Advisors.

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New York is Combating Workplace

Sexual Harassment by Edward J. Steve, Harter Secrest & Emery

T

he list goes on – former film producer Harvey Weinstein, former television news anchor Matt Lauer, former CBS executive Les Moonves, and former New York Attorney General Eric Schneiderman, to name a few. The #MeToo movement has created a national awareness of sexual harassment issues and has led to an increase in claims and monetary awards against companies and individuals. In the first year of the #MeToo movement, the U.S. Equal Employment Opportunity Commission (the federal agency that oversees workplace discrimination and harassment), filed 50-percent more sexual harassment lawsuits than it did the previous year, and collected $70-million for sexual harassment victims from October 2017 through September 2018. Recent sexual harassment settlements included a $10-million payment by Ford to Chicago workers, and 21st Century Fox has paid out more than $45 million for claims against Roger Ailes. Locally, a jury awarded $425,000 to a former manager of a Penfield Subway. But the consequences can go far beyond monetary costs. The emotional and physical impact on victims can be

devastating, and employers’ failure to prevent harassment can result in poor morale, turnover, and reputational harm. New Sexual Harassment Prevention Legislation On April 12, 2018, Governor Andrew Cuomo signed the New York State Budget into law. In response to media coverage of sexual harassment claims and the #MeToo movement, the budget contained new legislative requirements directed at employers intended to address workplace sexual harassment. For example, employees have historically been protected from workplace harassment committed by nonemployees (temporary workers, independent contractors, delivery persons, customers, etc.). However, those nonemployees are now protected from being harassed in the workplace. Furthermore, unless prohibited by federal law or pursuant to a collective bargaining agreement, mandatory arbitration of sexual harassment claims is prohibited. Requiring individuals to keep the terms of a settlement related to sexual harassment claims confidential (“gag orders”) are also prohibited, unless it is the individual’s preference. The individual must be given a 21-day period to consider the confidentiality requirement and, if accepted, be provided seven days to revoke acceptance. Effective January 1, 2019, as part of the state’s competitive bidding process, a bidder must state that it has a written policy addressing sexual harassment prevention and provides annual sexual harassment prevention training to its employees. Sexual Harassment Prevention Policy and Training Requirements As part of the new legislation, employers are required to implement a sexual harassment prevention policy and provide annual training to employees. On October 1, 2018, the state released its final guidance on the sexual harassment prevention laws. The final materials, available continued on page 52

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continued from page 50

online at www.ny.gov/programs/ combating-sexual-harassmentworkplace, include • a model sexual harassment prevention policy; • a model sexual harassment complaint form; model training documents; • minimum standards for sexual harassment prevention policies and training; • updated FAQs; • toolkits for employers and employees; • and an optional sexual harassment prevention policy poster. Here are some highlights of the material Policy Provisions • By October 9, 2018, all New York State employers (regardless of size) were required to either adopt the state’s model Sexual Harassment Policy or implement a policy that meets or exceeds the state’s minimum standards. The policy can be provided to individuals in writing or electronically and, if provided electronically, individuals must be able to print a copy. • The policy should be provided to new employees upon hire and in the language spoken by employees. • Employers must have a complaint reporting form. • The policy must provide information on federal, state,

local, and court avenues to report and adjudicate claims, including contact information for local police agencies. Training requirements • Employers may adopt the state’s model Sexual Harassment Prevention Training or conduct training that meets or exceeds the state’s minimum standards. • Training for all employees must be completed by October 9, 2019, and new employees should complete training “as soon as possible.” • Training must be provided to all employees who work, or will work, in New York, including nonexempt employees, part-time workers, seasonal workers, and temporary workers. • Employees must be trained annually. This may be based on the calendar year, the anniversary of each employee’s start date, or any other date the employer chooses. • Training must be “interactive” and may be online. • As with the policy, the training should provide information on federal, state, local, and court avenues to report and adjudicate claims, including contact information for local police agencies. What should employers do? Although the penalties for noncompliance are unclear, employers

will be better able to defend against sexual harassment claims and the potential damages resulting from those claims by having effective policies and training in place. If employers have not done so already, they should adopt a policy that meets the state’s minimum standards and implement a training program that meets the state’s requirements. Although employers must continue to comply with applicable laws, an employer’s best defense against sexual harassment claims is to create a culture of collaboration, inclusion, and, most of all, respect. Promoting workplace standards that promote respective interactions will not only assist with harassment prevention, but also improve employee morale and satisfaction. Edward J. Steve is Counsel in the Labor and Employment Law Group at Harter Secrest & Emery LLP where he provides real-world, client-focused employment law advice to public and private companies. Harter Secrest & Emery has extensive experience in counseling employers on sexual harassment prevention, regularly reviews anti-harassment policies, and provides sexual harassment prevention training programs for employers. For more information visit www.hselaw.com or contact Ed at 585-231-1298 or esteve@hselaw.com.

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index of advertisers

NOVEMBER 2018

We would like to thank our advertisers for supporting ROBEX Magazine. Please let our advertisers know you saw their ad in this issue. AAC Contracting........................................................................aac-contracting.com..........................................8 Admar Supply Co Inc..................................................................... admarsupply.com..........................................7 Advanced Thermal Technologies.................................. advancedthermaltech.com................Inside front cover Altra Rental & Supply......................................................................... altrarental.com.................................. 28-29 B & L Wholesale Supply.................................................................. blwholesale.com........................................38 Boulter Industrial Contractors............................................................boulter1.com........................................45 Brown & Brown Insurance of New York Inc........................... bbnyinsurance.com........................................35 C.P. 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