By Cheryl Higley
The snow industry has become more risky over time. Slip and fall liability, complicated contract clauses, higher expectations for service verification, and more competition are pushing snow removal and management businesses to become better at managing the legal aspects of the service.
There are some basic things that all contractors must do well to succeed and not get locked into the legal quagmire that rears its ugly head. This includes a solid process for quality documentation of service, accessing such documentation long term, and detailed review of any contract language prior to signing. But once you get outside the basics, there is a great deal of gray area.
Here are 5 tips to become more advanced in legal management:
- Itemize Invoices: Use invoices to document specific services rendered: Often overlooked is the opportunity to include detailed service-related information in invoices. This approach yields two results; first, customers are more accurately informed of the services rendered onsite, making it more likely that they will review and discuss questions with you before challenges to bills arise. Second, this provides a time-stamped, more detailed explanation of services rendered that can be defensible in a court of law.
- Contract Addendum Management: Often in commercial and retail work, contractors are asked to sign the client’s contract, with minimal negotiations. Many contractors work to mitigate risks by seeking to attach their own specific contract addendum. The risk is that such an addendum creates confusion and a lack of clarity if an issue goes to court; and it does not necessarily mean that the addendum will have more or equal weight than the existing contract. The best practice in general is to work on clarifying/negotiating terms in the client’s contract whenever possible, to ensure clarity on all sides as to scope, service levels, and liability concerns.
- Trigger Depth vs. Contractor Discretion: Trigger depths in the industry have become pretty commonplace, but many contractors know that if they wait until the specified accumulation in the Trigger Depth is reached, they will not be able to service as efficiently and customer complaints will ensue. Some accounts/contracts do delegate the decision for service start times at the discretion of the service provider. This is acceptable and can work well, but there may be some risk trade-offs for the contractor, including increased responsibility for onsite conditions and expectations. A third option is to negotiate not a Trigger Depth (amount of accumulation that designates services to START), but rather an Accumulation Threshold (minimum amount of accumulation that is mutually agreed as ‘acceptable’ by both parties). Most important is that the decision of when services start is clearly spelled out in contract language.
- Requests for cease of service: In heavy winters or extreme weather situations, it is not uncommon that customers verbally or by email request services be stopped on a site due to lack of budget or cash. In these situations, it is extremely important that the contractor get any such requests in written format if possible. A final tip here is for the contractor to send by fax a confirmation that services have been held at the request of the customer. A fax will provide a better avenue for communicating this, as it is a one-way communication that cannot be challenged by the more nuanced email or phone conversations that can take place in these situations.
- Creating a culture of ‘must report’: The best laid plans can never account for the amount of variation that occurs on sites during a season. Potholes, parking spaces, obstructions, and other site-specific challenges will arise and create the potential for unsafe conditions. A proactive risk management strategy is to drill into all employees who will be on sites that any potential risks are a ‘mandatory report’. These eyes in-the-field should be empowered to communicate any potential issues to company management, and they should be provided a simple and clear communication plan to do so.
This information was recently compiled from the webinar Advanced Legal Issues in Snow & Ice with Neal Glatt, CSP, ASM and Darryl Beckman, available long term at www.sima.org/resources.