Traditionally, residents of co-ops and condos have called on their supers and other staffers to perform minor jobs that fall outside regular duties. Many boards even encourage the practice as a low-cost service to residents. But recently, some boards are recognizing problems with this type of arrangement.
The biggest issue is liability, says attorney David Berkey, a partner at Gallet Dreyer & Berkey. A board could face claims if work done by an employee causes damage to the building or injury to a third party or the employee. For instance, if the super is putting in a new sink and causes a flood that damages a unit below, it’s not always clear whose insurance company – the building’s or the homeowner’s – is responsible. Sometimes the board is viewed as a joint employer, especially if that employee gets hurt working in someone’s apartment. The board can also face liability if someone is injured on-site or if the super’s work is sub-par.
Iwona Bardecka, a senior account executive at Century Management, says the board of a building she manages is currently grappling with this issue. “Right now they are working with insurance brokers and an attorney trying to figure out the best way to protect everyone involved,” Bardecka says.
There are several ways to do that. Berkey advises his clients to prohibit the staff from doing any work outside of official duties. But if the board or residents insist on allowing it, he suggests restricting the types of activities to acceptable-risk items such as changing washers on a faucet. The employee and the resident must each sign an indemnification contract, and the employee must have his own insurance. “If you’ve got a super who is also a general contractor who is licensed and insured, it could be okay,” says Theresa Racht, an attorney.
Once a board acts to forbid or restrict moonlighting by staffers, the next step is enforcement. “If someone is violating house rules,” says Racht, “you may need to charge [the shareholder] a fine and hold your employee in violation of [his or her] employment contract.”