Tag Archives: best practices

Considerations for the Effective Use of Email in Connection with Construction Projects

By on June 7, 2016

Email is an indispensable tool for contractors that can streamline communication regarding the many facets of a construction project that aren’t strictly found in a project’s plans and specifications, or in the relevant contract documents.  When used well, email can be invaluable to document the course of a project.  When it’s disregarded or treated haphazardly, email can fail for its essential purpose – meaningful communication – or worse still it can be used to turn your own words against you.  The following are several considerations when using email to communicate regarding your construction project.

Who is my audience? 

This isn’t a trick question, but it is more nuanced than it might initially seem.  In the first, instance, the obvious audience for each email is its addressees.  Those addressees, however, may be only the first audience for your email.  If a dispute arises regarding your project, you should anticipate that the audience for your email might grow exponentially to include corporate principals, engineers, architects, attorneys, arbitrators, judges or juries.  As a result email correspondence regarding your project should be limited to professional matters, focused on the subject matter to be addressed and as clear as possible regarding the subject matter being addressed.  When developing your email practices, it’s important to remember that your audience could extend beyond the initial addressees.  This should help you to focus your message on the relevant considerations for your communication and help you avoid sending emails that you’ll later need to explain.

Why am I sending this email?          

If you can answer this question succinctly, you’re off to a good start in drafting an effective project email.  The “high-level” answer to this question generally should be reflected in the subject line of your email.  The details that follow in the email should be limited to addressing the matter(s) in the subject line.  Discussion of matters unrelated to the expressed subject should be avoided and saved for another email, letter or conversation.  Consider writing a new email, with a new subject line, when your message no longer addresses matters in the subject line, rather than continuing a chain of email that has gone off point.  If you follow this practice, you’ll help the recipient to quickly identify the reason for your email, prioritize your email among the many received on a given day and help both you and your recipient to refer back to the email, or chain of emails, later regarding the particular issue(s) addressed.  As a side benefit, you’ll appear focused, organized and professional in your communication regarding the project.

Conversely, if you can’t answer this question, whatever you intend to write is probably best left unsaid, or at least, unrecorded.  Among the reasons you should avoid sending a project email are anger, annoyance, personal reasons, sarcasm or humor.  Nobody like a humorless person, but email is tone-deaf or worse – susceptible to multiple tones.  Like a diamond, email is forever.  Once you’ve pressed “send,” it’s safe to assume that your email will be part of the project record forever.  And like a diamond, it’s for “better or worse.”

When is an email (or letter) absolutely necessary?

There are instances when it’s critical to communicate to another party with email or a letter.

Deviations from plans, specifications or the contract:  Each time you’re asked or told to do something beyond the scope of work or that differs from the plans, specifications or your contract, you should confirm what you’re asked or told to do in writing.  An email confirming your prior communication(s), your understanding of what’s been requested and your intended resolution of that matter is critical to documenting your project accurately and favorably.  An email or letter addressing these matters achieves at least three important objectives; it provides a contemporaneous record of the event, it provides the requesting party notice of your intentions and it provides the party receiving your correspondence the opportunity to respond, to object or to further clarify the information you’ve provided. 

Particularly with respect to change directives from an owner or general contractor, often it will not be enough to correspond with the opposing party regarding the change, and other steps will need to be taken.  It is important, however, to use the email as a means to establish the circumstances of the change request, your understanding of what has been requested and how and when you intend to address the request.  These matters can significantly affect the likelihood that you’ll be compensated for change requests later if a dispute regarding your performance arises.      

Disputes:  Because your project communication is a significant piece of the overall record of a project, it’s critical to fill in details regarding matters of dispute with your communications.  For the reasons previously noted, your email communications can be used to reflect and confirm oral communications between parties whose positions and recollections may differ and change over time.  An email confirming the contents of a recent discussion, particularly regarding matters in dispute, can prove invaluable to establishing the circumstances, your actions and your position if a dispute ripens into arbitration or litigation.  Your contemporaneous email correspondence can serve as a powerful and credible tool to establish your version of the events regarding any dispute.

Setting the Record Straight:  For the same reasons that the record of events created in your email can be used to support your version of events, it is vital to respond to inaccurate recitations of conversations or events from another party.  In the long hindsight of a project, inaccuracies that go unchallenged by simple omission become more difficult to discredit.  This is not to say that you must respond vigilantly to each and every minor inaccuracy.  Rather, it is important that you do not let another party’s version of events control the written narrative of the course of the project.  Long before any matter becomes contentious, you’re well served by addressing, in writing, significant inaccuracies in another party’s written narrative of events that are important to explain your actions or address historical inaccuracies.  Sometimes it will be important to make sure the record is accurate as to whether something was done on a Monday or Tuesday, but more often than not, it’s more important to know in what sequence a particular task was performed or whether a certain discussion took place before or after certain work was performed. 

It’s not essential that you resolve whose version of events are correct:  generally, you’ll be able to verify what happened by other means as well.  It is crucial, however, that your version of events exists in the written record so as to avoid the scenario where only your testimony is left to challenge the other party’s testimony and their unchallenged written version of events that you failed to address contemporaneously.  Under those circumstances, it is significantly more difficult to establish your version of the events or challenge the credibility of another party whose testimony is corroborated by a written record of the events.       

Developing consistent email practices can be a powerful, if underappreciated tool in the contractor’s toolbox.  In addition to developing clear and credible records of your projects, you’ll be prepared to address questions regarding the performance of your work in a consistent and compelling way.  Better still, you may limit or avoid disputes through consistent application of your good email practices.  And for those disputes that can’t be avoided, when you sit down with your construction attorney to discuss the matter and review your records of the project, it’s likely that you will have a better prepared project file than your opposing party.

Transgender Inclusion in the Massachusetts Workplace

By on June 10, 2015

Massachusetts has long been a leader in civil rights, and several years ago Massachusetts joined the minority of states that provide explicit protection against discrimination on the basis of gender identity. Massachusetts’ anti-discrimination law was amended to add “gender identity” to the list of protected categories which extend to the workplace, housing, and government agencies. While that law provides much needed protections, employers are increasingly concerned about workplace issues specifically affecting transgendered people.

One question facing employers is harassment. As gender identity is part of the broad anti-discrimination statute, harassment and similar conduct is handled the same as it would be for race, gender, or other protected categories. Employers should include gender identity as part of their regular anti-harassment workplace training. The anti-discrimination statute also impacts the hiring of employees, and employers should refrain from asking any gender identity-related questions unless the gender of the employee is relevant to a bona fide occupational qualification. The law does permit such exceptions, but employers must ensure the qualification is legitimately needed and cannot be viewed as a pretext.

Another question facing employers is how to handle restrooms. The best practice would be to have one gender neutral bathroom, which appears to be a growing trend. The White House recently opened a gender neutral bathroom, as have several universities. When having a gender neutral bathroom is not possible for financial or other reasons, employers must defer to the employee’s choice of restroom, which is consistent with just-announced federal best practices issued by the Department of Labor. Forcing an employee to use a certain restroom would likely be considered discriminatory.

Some of the country’s largest companies have already implemented policies that acknowledge and respect gender identity issues. By one count, over half of Fortune 500 companies have included gender identity in their nondiscrimination policies. While protecting transgendered people is law in Massachusetts, it is also good business. Every business should strive to employ the most talented people it can, and gender identity (just like race, religion, and other personal categories) is simply irrelevant to the quality of the employee. Employers should work with their human resources staff and employment counsel to craft and implement policies that maximize the available workforce.  Should you have questions or concerns regarding Massachusetts’ anti-discrimination law or your company’s practices, consult with your employment attorney.

Massachusetts Supreme Judicial Court Interprets the “Tips Act”

By on April 16, 2015

Massachusetts law protects the “tips” or gratuities that waiters and similarly employed individuals typically receive from customers.  That law is commonly known as the Tips Act  (M.G.L. ch. 149, sec. 152A). The Tips Act provides that all tips must be given to the employees that earned the tips, and that tips cannot be shared with managers or the employer itself.  The Tips Act applies to three categories of employees:   “wait staff employees,” “service employees,” and “service bartenders.”  “Wait staff” includes waiters, waitresses, bussers, and counter staff who serve food or beverages (or bus tables) in a restaurant or banquet facility and who have no managerial responsibility.  “Service employees” is a catch-all definition that includes any employees who provide services directly to customers and who customarily receive tips, but also have no managerial responsibility.  “Service bartenders” are employees who prepare beverages to be served to customers by other employees.

A recent Supreme Judicial Court case, Meshna & others vs. Scrivanos & another, interpreted some key provisions of the Tips Act.  In Meshna, current and former Dunkin’ Donuts employees filed suit over a “no-tipping” policy found at some individual stores that prohibited employees from receiving tips from customers.  The plaintiffs argued that the Tips Act prevented employers from instituting a “no-tipping” policy.  The defendants prevailed, with the Court finding that the Tips Act allows employers to have a “no-tipping” policy so long as the policy was clear to customers.

The Court went on to consider the scenario where an employer has a no-tipping policy, but does not communicate that policy to customers.  The Court held that if the policy is not communicated, then any tips left at the store belong to the employees, as customers have a reasonable expectation that the money left as tips will be given to the wait staff.  As long as the policy is explicitly stated by the employer, however, even money left by customers may be retained by the employer without violating the Tips Act, regardless of the customer’s intent.  The Meshna holdings are consistent with existing interpretations of the Tips Act.

Some restaurants and banquet halls impose an additional “administrative” fee on their invoices and contracts. Under the Tips Act, employers are permitted to impose an “administrative fee,” or something similar, but such fees must be clearly stated to all customers (in a contract or on the bill itself) that the administrative fee is paid to the employer or management.  Because the Tips Act defines “service charge,” “tip,” and “gratuity” as synonyms, employers that desire to include an additional charge beyond the cost of the food, should avoid the term “service charge” and use “administrative fee” or “management fee” as a best practice.  Massachusetts Courts want to see evidence that the employer informed customers that any extra fees do not represent a gratuity for employees.  Should you have questions regarding whether your invoices or current practices comply with the Tips Act, consult your employment law attorney for a definitive answer.