MARCH 2017

VOL 6 ISSUE 3

REPORTER Rooftop

Upcoming Events

Wednesday, May 17th

Dinner Meeting

Employment Laws

MARIJUANA?

Western States Expo

June 11-13 Las Vegas

Rooftop Reporter Page 1

From the President... Inside this Issue: SDRCA Vision 2017

SAFETY CORNER

Right to Repair?

New Members

Drone Insurance?

GL & WC Audits

Top of the morning, roofers. Its St. Paddy’s day month so I will be switching from beer to Irish whiskey until the 31st.

I would like to send condolences to the family and friends of Aureliano Moreno who suffered a tragic acci-dent while on the roof. Please visit his go fund me page to help support our fellow roofing family.

I am sure you all are very busy with work right now and pulling 12 hour days and 8 day weeks. Always re-member to think safety as this is always overlooked in the time of panic and trying to squeeze 12 hours of work into a 8 hour day.

March joke: An Irishman goes into a bar in America and orders three whiskeys. The barman asks: "Would it be better if I put all three shots in one glass?"

The Irishman replies: "No! I have two other brothers back at home, so every time I come into a pub, I order a shot for them both."

The following week, the Irishman orders just two whis-keys.

The barman asks: "Did something happen one of your brothers?" "Oh no," replies the Irishman. "I just decided to quit drinking!"

Eric Richardson, SDRCA President

The mission of the San Diego Roofing Contractors’ Association is to establish and maintain profes-sional standards and practices in the roofing industry through education and public awareness. Adopted January 1997

To elevate...To protect and defend...To cooperate...so that all benefit.

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The SDRCA Mission Statement:

The San Diego Roofing Contractors' Association (SDRCA) has been serving the Roofing Industry for over forty years.

Times, techniques and technology has changed, but the SDRCA Core Values, Code of Ethics, Mission and Vision Statement has not. The 2017 Board of Di-rector Team is committed and dedicated to serving our members and this associa-tion with new education, resources, training and savings for the purpose of helping our members continue a tradition of profitability and professionalism in our industry. It is the intent of this Association to establish and maintain professional standards and prac-tices in the Roofing Industry through education and public awareness. Our members are com-mitted to excellence and they use the benefits offered by the Association to help obtain this goal. The SDRCA encourages you to become fully aware of the potential problems of dealing with an unli-censed, uninsured roofer.

The SDRCA was formed in 1957 to preserve and promote the art of roofing application. SDRCA members recognize that after 59 years of innovation in roofing technology and application, the fol-lowing goals are as meaningful and relevant today as they were yesterday and will be tomorrow.

The SDRCA remains a strong supporter of open competition and the free enterprise system; indeed, this competitive environment led to the success of its members. SDRCA members recognize that the perpetuation of such a healthy business environment is greatly influenced by their own professional conduct. The SDRCA supports the following practices, and encourages them in its members.

SDRCA Member Code of Ethics: 1. To conduct my business in an ethical manner, so that I will reflect credit and confidence by the public in our

industry as well as my own business.

2. To consider my vocation worthy and dignified and thus affording a distinct opportunity to serve society.

3. To hold that the exchange of my goods and service for a fair profit is legitimate and ethical, provided all parties in the exchange are benefited.

4. To elevate the standards of my vocation by exercising a high degree of care in the execution of all work, and correct any defective work as a direct challenge to my ability and integrity.

5. To protect and defend the public from fraudulent and unethical practices affecting our industry.

6. To cooperate with the association in its effort to better conditions in the industry, so that public, manage-ment, capital and labor will all mutually benefit.

7. To operate my business in accordance with the rules and regulations of constituted authority at all levels and in a manner which will leave no doubt as to my loyalty to my country and its ideals and fundamental principals.

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Welcome New Members

In Memory of Aureliano Moreno

Aureliano Moreno was a devoted father and husband who passed away on Feb-ruary 11, 2017. He was loving and caring not only as a father but also as a friend. He cherished everything he had and was a devoted hard worker who will be missed by his family, friends and relatives.

The Moreno Family will gladly appreciate any donations and thank you for all of the support. https://www.gofundme.com/aureliano-moreno-funeral.

SDRCA March 2017

Safety Statistic of the month . . . Since 60% of all FATAL motor vehicle crashes are the direct result of speeding, impaired driving or driver fatigue, defensive driving training should be a part of your safety program. Training employees on defensive driving behavior and traffic hazard recognition will reduce your liability exposure, and decrease or eliminate insurance costs and expenses related to motor vehicle collisions.

OSHA under Trump: A closer look . . . Legal experts are predicting significant changes for worker safety regulation and rules enforcement under the new administration.

A new presidential administration almost certainly will mean a new direction for OSHA, legal experts agree. Regulations could be undone. Funding could decrease. Strategies for worker safety could shift 180 degrees. How soon will changes arrive? Which objectives will take priority? Who will next be chosen to lead OSHA? Those decisions ultimately lie with President Donald Trump and his team as they settle into the White House.

“Even if it wasn’t Trump, just having a Republican in office would have been a substantial change by itself,” said Mark Kittaka, a partner and administrator of the Labor and Employment Law Department at Barnes & Thornburg LLP in Fort Wayne, IN. “Because it’s Trump, it’s going to be even more. It definitely will change. “On the campaign trail, Trump touted his belief in smaller government with fewer rules and more freedoms. He vowed to eliminate two regulations for every new one enacted. He promised to ease the burdens on big businesses and blue-collar workers alike by stimulating the economy and creating jobs.

Workplace safety did not take center stage as a campaign issue for Trump or any other presidential candidate. But Trump’s limited-regulation stance, coupled with his experience in construction and other industries, suggest to some that he will steer OSHA more toward compliance assistance and away from enforcement. Trump offers the unprecedented case of an incoming commander-in-chief who has been fined multiple times by OSHA for safety violations at his worksites. His businesses also have relied on contractors and subcontractors who have been hit with major penalties. Once Trump turns his attention toward OSHA, what specifically could change?

Regulations in jeopardy . . . The injury and illness electronic recordkeeping rule could be among the first items that Trump targets. The rule requires many employers to electronically submit injury and illness data, which may then be published on OSHA’s website. Anti-retaliation protections also are included in the rule, which prohibits employers from discouraging workers from reporting an injury or illness. The rule has drawn sharp criticism from some employers, who claim it is burdensome and unnecessary. In July, eight industry groups – including the National Association of Manufacturers and Associated Builders and Contractors – filed a legal challenge to block the rule, claiming the anti-retaliation provisions unlawfully banned or limited safety incentive programs and post-incident drug testing. A judge denied the motion in November.

A formal rulemaking process often requires years to enact change, but Trump could turn to faster, existing methods. OSHA could issue new guidance documents or letters of interpretation that reopen the door for drug testing and safety incentive programs, for example. Or the administration could pursue a budget rider that says OSHA shall not spend any funds on implementing the electronic recordkeeping database or in collecting or reviewing employers’ injury and illness data submitted pursuant to the rule – effectively invalidating its existence. Depending on the timing, some rules could be changed under the Congressional Review Act.

The silica rule published in March 2016 could be on the chopping block, but as of press time it is set to go into effect in the construction industry in June and for general industry in 2018. The rule reduces the permissible exposure limit for respirable crystalline silica to 50 micrograms per cubic meter of air averaged during an 8-hour shift – half the previous limit for general industry and five times lower than the previous limit for construction. Also in jeopardy is the so-called “blacklisting rule” published in August, which requires firms seeking to do business with the federal government to report previous labor-law violations. Meanwhile, ongoing but incomplete efforts such as the combustible dust rule and process safety management reform are unlikely to advance during the Trump administration. However, not every regulation will be scrapped. “Worker safety regulations as a general matter are not likely to disappear – OSHA and its regulations have been around for a long time and have survived prior administration changes,” said Aimee Delaney, a partner specializing in labor and employment at Hinshaw & Culbertson LLP in Chicago. “I don’t think you’re going to see overnight a dramatic change in the way OSHA operates, but by the end of four years, you will see a markedly different approach by the agency with a different set of tools than we’re seeing at the end of the Obama administration.”

Philosophical shift Delaney expects OSHA to shift from an enforcement-based strategy toward more compliance assistance – the opposite of what was seen during Former President Barack Obama’s eight years in office. “A policy example of this in action may see the Severe Violator Enforcement Program, which created OSHA’s ‘bad actor’ list, taking a back seat to the Voluntary Protection Program,” Delaney said. In general, OSHA funding tends to increase under Democratic administrations and decrease under Republican administrations. Trump’s team also could change the way OSHA spends its money, for example, by reducing the agency’s enforcement budget. The new administration could also decrease the number of higher-fine, repeat violations by shortening the time frame under scrutiny to three years from five years.

Reprint of an article By Tom Musick, Associate Editor, Safety & Health Magazine, February 2017, pp. 42-43

Cal/OSHA Reminder to Employers: Post Annual Work-Related Injury and Illness Summaries no later than April 30th, 2017 . . .

Oakland—Cal/OSHA is reminding employers in California with more than 10 employees to post their 2016 annual summaries of work-related injuries and illnesses from February 1 through April 30, 2017. Employers’ requirements to record occupational fatalities, injuries, and illnesses are in the California Code of Regulations, Title 8, Sections 14300 through 14300.48. Section 14300.32 describes the annual posting requirement. Section 14300.2 lists exempted industries.

Instructions and form templates can be downloaded for free on Cal/OSHA’s Record Keeping Overview. The overview includes the summary template, Form 300A, which is the required workplace posting that must be placed in a visible, easily accessible location at each worksite. Current and former employees, including employee representatives, have the right to review the summary in its entirety. Employers must prepare and maintain records of work-related injuries and illnesses. Even if none occurred, employers are still required to complete and post Form 300A. For more information on employers’ posting requirements or how to reduce workplace injuries and illnesses, visit DIR’s Employer Information web page.

Cal/OSHA helps protect workers from health and safety hazards on the job in almost every workplace in California. Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers to improve their health and safety programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services.

Groups Sue OSHA & Dept. of Labor over Recordkeeping Rule . . . Washington – The National Association of Home Builders and other construction industry trade groups have filed a lawsuit against OSHA and the Department of Labor over what they call an “unlawful and arbitrary rule” that requires employers to electronically submit public worker injury and illness data, which will then be made available to the public on OSHA’s website. In the lawsuit, filed Jan. 4 in the U.S. District Court for the Western District of Oklahoma, the groups claim OSHA had no authority to issue the Improve Tracking of Workplace Illnesses and Injuries final rule, which went into effect Jan. 1st, 2017. The rule states that establishments with at least 250 workers must electronically submit to OSHA data from OSHA Forms 300, 300A and 301 annually.

Establishments with 20 to 249 employees in certain high-hazard industries are required to submit information from their annual summary form, OSHA Form 300A.

“We have vigorously opposed this rule from the start, and cannot allow this type of regulatory overreach to occur,” NAHB Chairman Ed Brady said in a press release. “Among the many issues with the rule, there are significant concerns associated with OSHA’s requirement of employers to submit detailed injury and illness logs to the agency for public posting. “Not only does OSHA not have the authority to do this, it also exposes a business to significant reputational harm, all without demonstrating any evidence that it would effectively reduce workplace injuries and illnesses.” “We also have serious concerns about the anti-retaliation portion of the rule, which would allow OSHA inspectors to cite an employer without needing a complaint from a worker – this is a clear overreach of authority as it goes against Congress’s carefully constructed mechanism to address retaliation that is specifically set forth in the OSHA statute,” Brady said. He also questioned the research methods used to formulate the rule.

“OSHA has not justified any of the rule’s requirements with any real benefits analysis and has relied entirely on anecdotal information,” Brady said. “This is entirely insufficient and cannot be allowed to stand and potentially serve as a precedent for other agency rules. Workplace safety is of the utmost concern of our members; however, this rule is unlawful and does not serve its intended purpose of improving workplace safety. The rule needs to be vacated and set aside in its entirety.” In July, eight organizations, including Associated Builders and Contractors, filed a lawsuit to block the rule. While the U.S. District Court for the Northern District of Texas denied the motion on Nov. 28th, the latest lawsuit seeks to invalidate the new rule.

GUARDIAN FALL PROTECTION offers new online “Fall Protection Awareness” Training courses . . . Great tool for new employees!

Guardian Fall Protection has announced the addition of Fall Protection Awareness to their Online Training Portal! Sometimes the best place to start is right at the beginning, and for those of you who are new to the world of Fall Protection, GUARDIAN has a class just for you. This approximately 2-hour class is designed to give you a high-level overview of Fall Protection topics to increase your knowledge while working in fall hazard situations. Guardian’s online Fall Protection Awareness class covers the ABC’s of Fall Protection, the Fall Protection Hierarchy, OSHA/ANSI Key Concepts, equipment inspection, maintenance, and storage – and much more! Like their popular online Competent Person class, the Fall Protection Awareness class is available any time, no matter where you are! Take safety to the next level, from the comfort of your own home! Click HERE to register and begin your training today!

Cost is $299.00 for Competent Person Training and $79.00 for the Fall Protection Awareness Training.

The March 2017 San Diego County delivery schedule is Monday, 3/13 and Monday, 3/27 . . .

HAPPY Saint Patrick’s Day – Friday, March 17th! THANK YOU for your business and continued support!

Dan Dallenbach 750 Monterey Pass Road Monterey Park, CA 91754

Mobile: 951-217-0838 dan@roofmaster.com

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The Right To Repair Act: A Court’s Interpretation By Sharice B Marootian (Abdulaziz, Grossbart & Rudman)

As many in the residential building industry are aware, about 14 years ago, the legislature passed a bill known as SB800. The enacted law is commonly referred to as the Right to Repair Act ("Act") and applies only to new residen-tial units where the purchase agreement with the buyer is signed by the seller on or after January 1, 2003.

A recent California Court of Appeal decision examined this Act. In Elliott Homes, Inc. v. The Superior Court of Sacramento County, et al., the owners of 17 single-family homes filed an action against Elliott Homes, Inc. (the builder of their homes). They sought damages for construction defects claiming that their homes were in defective condition when they took possession and that the defects resulted in physical damage.

The Right to Repair Act establishes a non-adversarial (or cooperative) inspection and repair procedure to allow builders to attempt to resolve homeowners' construction defect claims before a lawsuit is filed. Pursuant to this pro-cedure, a homeowner is required to serve the builder with notice of the construction defect claim, and the builder has the opportunity to repair within a given time period. If the homeowner files a lawsuit before the procedure is initi-ated or completed, the builder may obtain a stay of the lawsuit, or in other words, have the lawsuit put on "hold" while the pre-litigation procedures required by the Act are completed.

In the Elliott Homes case, the homeowners failed to give notice to the builder of the alleged defects or otherwise comply with the pre-litigation procedures before filing suit. In the trial court, the builder sought to have the action stayed. The court denied the builder's motion to stay. The Court of Appeal, reversed that decision, and directed that a stay be issued until the parties have satisfied the procedures outlined in the Act.

A quick overview of the Act: It is comprised of five Chapters. Chapter 1 defines terms. Chapter 2 sets forth stan-dards for residential construction, the violation of which constitutes an actionable defect. Chapter 3 imposes obliga-tions on the builder, including the obligation to furnish a minimum one-year express limited warranty. It also im-poses on the homeowner the obligation to follow all reasonable maintenance responsibilities and schedules. Chapter 4 prescribes the pre-litigation procedures described above. Chapter 5 sets out the procedure for claims brought under the Act, including the applicable statute of limitations, the burden of proof, the recoverable damages, etc. It also provides that the Act is binding upon all original purchasers and their successors-in-interest.

The Court wrote in its opinion that SB800 sought to respond to two competing concerns - those expressed by build-ers and insurers over the costs associated with construction defect litigation, as well as those expressed by homeown-ers over the effects of a then recent Supreme Court decision that held that defects must cause actual damage prior to being actionable in tort. In other words, until SB800 was enacted, a purchaser of a home could not bring a construc-tion defect action against the builder, unless and until the defect caused actual damage. The cost to repair and the diminution of value of their property related to the defect was not recoverable against the builder. Since the home-owners in this action had actual damages and were not claiming causes of action under the Right to Repair Act, they contended that they were not required to follow the pre-litigation procedures of the Act.

After considering the legislative intent, the Court of Appeal in the Elliott Homes case found (1) that the Legislature intended that all claims arising out of deficiencies in new residential construction, with limited exceptions, be subject to the standards and requirements of the Act, (2) that homeowners bringing such claims must give notice to the builder and engage in the pre-litigation procedure prior to filing suit, and (3) if the lawsuit is claiming deficiencies in construction that constitute violations of the standards set out in chapter 2 of the Act, the claims are subject to the Act, and the homeowner must comply with the pre-litigation procedures, regardless of the theory of liability as-serted. In short, homeowners, who have actual damage resulting from deficiencies in the standards set forth in the Act, cannot do an end run around the Act by omitting any mention of it in their lawsuit.

The Right to Repair Act is beneficial to the construction industry in that it requires this notice and opportunity to repair prior to filing of a lawsuit. However, it has been detrimental in that it has provided homeowners with a cause of action against the builder even if the defect has not caused any physical damage.

Download a PDF Copy of The Right to Repair Act: A Court's Interpretation

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Insurance Update By Patricia Mosteller, Pacific United Insurance Services

General Liability & Workers Compensation Audits

Carriers are tightening up their audit requirements for General Liability. Premiums are generated based upon estimated gross receipts, payroll & sub costs. No one has a crystal ball, so it’s difficult to be right on the money, however, I recommend checking in with your broker 6 months into the policy term to see how the estimates compare to the actual figures at that point. It’s better to endorse the policy at the 6 month mark, rather than get hit with a huge audit at renewal time.

Workers Compensation policies are always audited as well. Please be sure to check your policy and with your broker to ensure that the correct payroll is being reported monthly, semi-annually, or annually, depending on the payment terms. Again, it’s best to endorse the policy mid-term if the payroll generated is higher than the original estimate at inception.

Drone Insurance

We had a wonderful Dinner Meeting 2/15 regarding Drones in the Roofing Industry.

If you’re considering the purchase of a drone for your business, please keep in mind that the Minimum Premium is $10,000 for liability to protect third parties from bodily injury and property damage. Coverage is also offered to protect the drone itself from damage, vandal-ism, theft, etc.

Feel free to contact me with any questions. Also, keep in mind we offer discounts to all SDRCA members!

Patricia Mosteller

President, Pacific United Insurance Services

General Liability * Workers Compensation * Bonds * Auto * Professional Liability/E&O* EPLI

7851 Mission Center Ct. Suite 322

San Diego, CA 92108

(619) 274-8144 Office

(619) 274-8146 Direct Line

(619) 274-8143 Fax

License #0H99349

www.pacificunitedins.com

2017 Board of Directors

Eric Richardson, President JP McEvenue, Vice President Troy Parrott, Sec/Tres.

Roofing Specialists of San Diego PetersoenDean Roofing San Diego County Roofing

Dennis Parra II, Director Gary Gilmore, Director Patricia Mosteller, Director

Parra Building Consultants RSG San Diego Pacific United Insurance

Cindy Molina, Director Dawn Shaw, Director Randy Swank, Director

RSI Roofing Eagle Roofing Products GAF

Dan Gentile, Director Dan Dallenbach, Director David Dombrowski, Director

Polyglass Roofmaster Products Noble Roofing & Exteriors

Fred Bouman, Immediate Past President

RSI Roofing

Thank You to the 2017 Advocate Sponsors

Diamond Emerald Pearl

SDRCA Contact Information

PO Box 1328, Solana Beach, CA 92075

888-825-0621 Phone/Fax, ed@sdrca.com, www.SDRCA.com

The SDRCA wishes to Thank our contributing Sponsors. The ability to bring ongoing, valuable educational, social and professional benefits and training is dependant upon our sponsors. We look forward to the new spon-