William D. McCracken in Board Operations on April 20, 2021
The pandemic confronted co-op and condo boards with issues that they had never faced before, from running virtual meetings to enforcing public health mandates. But the pandemic also presented familiar problems in a new light.
Take the problem of private work. “Private work” or “side work” is loosely defined as jobs that building staff employees do independently for shareholders or unit-owners on their own time outside the scope of their employment.
Imagine you’re a resident who has been stuck inside your apartment for months participating on daily Zoom calls. You decide that you want to freshen up your “background” by repainting your living room wall. Theoretically, you could do this work yourself, except you don’t know how to paint. You could hire an outside contractor to do it, but the time and expense of finding someone is not worth the effort, plus you’re uncomfortable letting a stranger into your apartment for fear of contracting COVID-19. Under these circumstances, it makes sense to ask your building’s handyman, whom you know and trust, to take care of it on his day off. The handyman is happy to do it because it earns him some extra money and goodwill. Isn’t this a win-win?
Not so fast! Now imagine you’re a board member. You’ve just received a report that the handyman was hanging a picture in a resident’s apartment and dropped his drill and broke an expensive vase. Or he was regrouting the tile in the bathroom without a plumbing license and caused a major leak. Or the shareholder was an asymptomatic carrier of COVID-19 and now the handyman and his entire family are sick. The list goes on. Shouldn’t you completely outlaw all private work?
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It's not easy to find middle ground between an anything-goes approach to private work and a total ban, but there are steps boards can take. One basic rule is that private work should never be done on company time – that is, if an employee is doing a private job, he must be off the clock. Boards can also limit private work to jobs that don’t require licenses or that don’t carry a significant risk of physical or property damage, though this, too, gets complicated. Isn’t changing a lightbulb a low-risk activity? Maybe it is in most cases, but what if it involves a stepladder and the risk of a fall? Boards need to find answers to such questions before they allow some private work.
Limiting private work might deprive residents of one source of cheap and convenient labor, but here again boards have options to soften the blow. For example, management could find licensed, insured contractors willing to come in and do various small jobs in the building from time to time, perhaps even at discounted rates.
Of course, if building employees were able to get independent insurance, or if the co-op, condo or homeowner were able to include these activities on their insurance policies, private work would be less of a concern. But we’re living in what’s called a “hard” insurance market, when the pandemic, combined with numerous other factors, has made affordable insurance more and more difficult to acquire. And as premiums have risen, coverage limits have come down. As a result, finding acceptable coverage for private work may not be possible. That makes it all the more important for boards to assess risk against convenience – and decide exactly which types of private work they will allow.
William D. McCracken is a partner at the law firm Ganfer Shore Leeds & Zauderer.
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