Industry Standard USA, LLC; A SDVOSB, DBE Company Setting the Standard by Doing It Right the First Time

By Sarah Hall

Chris Dambach, Owner, Industry Standard USA, LLC.

As an infantry Marine in Iraq, Chris Dambach learned about the three B’s.

“They say on every mission, you’ve got to have the three B’s: the beans—accommodations, lodging, food—the bullets—tools and materials—and band-aids—PPE and safety equipment,” said Dambach, owner of Industry Standard USA, LLC. “You can apply that same thinking mentality with construction. If you’re working out of town, do you have hotel accommodations? Do you have all the tools? Do you have all the material on site the day before? Are you outfitted properly for the work you’re going to be doing? So, you’re always thinking ahead being proactive, and always anticipating what’s around the corner.”

Industry Standard USA provides facility support services—lawn mowing, snow removal, janitorial, window washing, tree removal, and the like—on government projects. For the last two years, the company has also been providing construction services, including excavation, backfilling, grading, demolition, interior demolition, exterior demolition.

Industry Standard USA, is a service-disabled veteran-owned small business, a certification it carries at both the state and federal level. The firm is also a Disadvantaged Business Enterprise-certified contractor with the United States Department of Transportation.

“New York State and the federal government say, if you are a service-disabled vet, you qualify for this certification,” Dambach said. “In every New York State contract, there’s a small requirement that says the prime contractor needs to subcontract or buy from a supplier X amount of percent from a service-disabled company. So, in New York, on all the contracts, there’s quite a bit amount of work out there for us to go ahead and supply as a subcontractor or supplier to these large prime contractors and then the federal government, they will go ahead and set entire contracts aside for service-disabled veterans. So, only we can bid on them.”

The firm recently made the Inc. 5000, a list of the fastest-growing privately held companies in the United States that ranks companies by overall revenue growth over a three-year period. Industry Standard USA came in at No. 1728.

It’s a long way to come from its beginnings as a small lawn care endeavor, which itself grew from a casual chat among fellow grunts in the Iraqi desert.

“When I was overseas in Iraq, me and the guys were going around the circle, asking each other questions, saying, ‘Hey, what are you going to do [when you get back home]?’” he recalled. “Then it came my turn, [and] I said, ‘I have no idea. I don’t have any real trade experience.’”

What Dambach did know was that he wanted to work for himself.

“I didn’t want to work for anybody anymore,” he said. “I didn’t want to be told, when I can eat, go to sleep. I was done taking orders.”

His fellow Marines pointed out that he used to mow lawns in the summer and suggested he start a lawn care company. He jumped on the idea, and in 2010, he started Veteran Lawn Care. The business got its first government contract two years later. By 2017, Veteran Lawn Care had become Industry Standard USA.

“We started teaming up with larger companies that had more experience than us, but didn’t have the certification,” Dambach said. “We also could perform the work, but we couldn’t win it because we didn’t have the past performance. So, what comes first? The chicken or the egg? How can you win a bigger job if you can’t show the past experience? How do you show the past performance if you can’t win that bigger job? So, you have to team up with larger companies. And then we started winning larger contracts, multimillion-dollar contracts with the federal government. And now, a lot of those contracts, we can self-perform on our own. We don’t need to team up anymore because we have the past performance.”

A couple of years ago, Industry Standard USA expanded into construction. Just as they had done with grounds maintenance projects, the firm teamed up with larger firms in order to obtain bigger contracts. Now Dambach says his business has a great relationship with local giants, like Global Urban Enterprises LLC, also a service-disabled veteran-owned small business, and Heuber Breuer (HB). In particular, Industry Standard USA worked with both on a $24 million project at Western New York National Cemetery, the veterans’ cemetery between Rochester and Buffalo.

“We provided the landscaping and the irrigation services on that contract,” Dambach said. “It was pretty cool because Al [Urban, owner of Global Urban] assembled a team of I think six or seven service-disabled vets and Heuber-Breuer.”

Dambach feels particularly connected to this project.

“The cool thing is, I’m so proud of it, as my grandfather’s going to be buried there,” he said. “My father is going to be buried there and I’m going to be buried there. So essentially, I helped build my final resting place and my father’s and my grandfather’s.”

He is also grateful for the opportunity to work with mentors such as Global Urban and Heuber-Breuer.

“I cannot tell you enough about these guys,” he said. “Anytime I have a question or I need help or I don’t understand something and I need explaining to, they will not hesitate to get on the phone with me and say, ‘All right, Chris, we’re going to explain this to you and teach you.’ I could not ask for two better partners and they understand because they were here in my shoes once. I would like to be them when we grow up.”

Dambach hopes to fill a similar role in the future.

“I want to be able to, down the road, mentor a young company like we are in construction or in grounds maintenance,” he said. “I want to be able to go ahead and work with the younger company and say, ‘Hey, now, it’s my turn to go ahead and help you guys grow.’”

That’s not all Dambach hopes to see in Industry Standard USA’s future.

“I have four young sons ages 10, 6, 5, and 3. I’d like to see one of my boys get involved with the company,” he said. “It’s just such a great time to hang out with them, even though I’m yelling half the time. At the end of the day, I know they’re going to grow up so fast because I’m watching it happen in front of me. So, I’m hoping I can hold on to a little bit of it by bringing one of the kids into the business. So, on the weekends, we have a couple of four-wheelers here at the shop. I bring my sons in. We ride four-wheelers. I have them push the broom a little bit, get them familiar with the shop, let them know it’s a fun place.”

It is one of the perks of owning his own business, Dambach said, but it’s far from the only one.

“[I really enjoy] being able to give back. That’s a big thing,” he said. “That’s one of the reasons why I started the company. I was done taking orders. I wanted to be my own boss. But also, I know if we grow this thing into the machine that it can be, we’re going to be able to really make changes locally and in our communities; donate back. We like to donate to Vera House, to the Boy Scouts, to the Building Men Program in the city of Syracuse—that’s young inner-city males that might be needing more of male influence. If I were just working for a company, I wouldn’t really be able to donate that much to some of these groups.”

The job isn’t without its challenges. Like many other companies, Dambach said COVID has impacted his business, most noticeably in terms of finding employees.

“That’s the biggest problem I think most companies across the country had, and they’re still having,” he said. “When you bid the contract, you didn’t anticipate COVID. You didn’t anticipate the country being shut down and let it open back up. Finding labor would be nearly impossible on top of that.”

Dambach said it is especially difficult when dealing with federal projects, when there’s no wiggle room in the budget.

“We were in a real tight spot over the course of this entire year [trying to] staff our contracts at 100 percent,” he said. “We spent $45,000 on Indeed running ads this year alone, just trying to fill positions, when our estimated budget for recruiting was $4,500. We’re just getting to the point now we’re able to start finding labor again and get all of our projects fully staffed.”

Fortunately, he said, he has a great team.

“I work with a really, really, really great team here in the office, and we have a great team on the field,” he said. “Everybody gets along, everybody likes to have fun but work hard.”

That team is dedicated to providing the best customer service possible.

“We’re extremely responsive, and one of our sayings here is quality over profits,” Dambach said. “We try to give the best quality we can. We’re easy to work with.”

But for Dambach, the biggest reward is being able to see the tangible results of his work.

“That’s one of the reasons I started mowing lawns,” he said. “I don’t know what projects you’ve done, maybe at your home if you build a raised bed garden, or build a front deck or a walkway. Isn’t it nice to be able to look at the project when you’re done and get the instant gratification to say, ‘Wow, I did that. Look how beautiful it is.’ It’s very satisfying.”

Julie Barown Continues a Legacy of Excellence at J. Andrew Lange, Inc.

by Becca Taurisano

Julie Barown had always excelled at math and science, but was thinking about a career in law until her high school physics teacher stopped to talk to her after class. Recognizing her natural talents, he suggested that she consider engineering instead. “It was the first time my eyes had really been opened to that field of study. Attending an all-girls high school in Brooklyn, it was just not something that anyone had suggested to me before. The thought of becoming an engineer sounded incredible and I knew immediately that’s what I wanted to do,” she says. That one conversation changed her life. After high school graduation, instead of studying political science, Barown received a scholarship to Rensselaer Polytechnic Institute and thrived in the rigorous academic engineering environment she found there.

After receiving a Bachelor of Science from Rensselaer with a concentration in Civil Engineering, Barown set out on a career path that included obtaining her New York professional engineering license and working as a professional municipal engineering consultant.  After nearly a decade and a half in that area, feeling her career had stalled and yearning to expand her horizons, she set out into the engineering sales world. This culminated in a realization of the goals Barown had set many years ago. This past October, Julie Barown was named President of J. Andrew Lange, Inc. in East Syracuse, a manufacturers’ representative, supplier and dealer for water and wastewater treatment equipment serving Upstate New York.

Barown came to J. Andrew Lange, Inc. in 2018. She was looking for a company that would allow her to make an impact across New York State by providing technical expertise, reliable products, and outstanding technical customer service in order to protect one of New York’s greatest natural resources – water. A chance encounter with long-time Lange employee and professional acquaintance, Mike Mele, lead her to Lange and it seemed like a natural next step in her career. Mele told her that Lange was looking for someone to come on board and knowing Barown from her days as a consultant, he was enthusiastic. When she interviewed with owner, Margery Lange Keskin, Barown realized there was an opportunity for ownership as well. “All the cards had finally fallen into place. Lange was exactly where I wanted to be,” says Barown, “and it was already a woman-owned business. I knew there was a lot of potential for me at Lange and where the company could go in the future.”

Lange was incorporated in 1968 by J. Andrew Lange, Keskin’s father. As a second-generation business owner, Keskin was looking for someone to continue the legacy her family built. With Keskin’s business acumen and Barown’s technical expertise, they naturally complemented each other’s skillsets. “I have always felt very well taken care of by Marge. I always felt very valued as an employee,” says Barown. “My experience working for a consultant and my experience working for a manufacturer get wrapped up into a nice package here with what I do for Lange. I am the bridge between the engineering and manufacturing worlds,” Barown says.

As a business partner for manufacturers, Lange is responsible for business development of the products they represent, as well as working with engineers to specify equipment. There is a lot of work done by Lange before a piece of equipment is ever sold. “Our relationship with engineers is key and the trust is so important. We pride ourselves on our technical expertise and being upfront and honest at all stages of the project,” Barown says. However, Lange’s work doesn’t stop there. Lange also works closely with contractors who are installing their equipment, so being responsive to contractors’ questions and helping them solve problems, is crucial. “There are a thousand different places where things can go off track during construction,” Barown says, “but we are there to make sure the process keeps moving smoothly, for the contractor, the engineer, and the owner.”

At the beginning of 2020, Mike Mele announced he would retire from Lange after more than 25 years. Then the COVID-19 pandemic happened. “Everything was very unsettled,” says Barown, “and I realized that I needed someone I could rely on.” In July 2020, Mike Deyulio joined the team at Lange. “When you make big changes, there is always risk involved and some level of discomfort. Once Mike came on board, it made it comfortable for me to take on the risk of ownership,” says Barown.

Mike Deyulio brings more than 20 years of knowledge of the construction industry, sales experience, and business expertise to the Lange team. Deyulio says he likes the way Lange is run, both by Barown and Keskin before her. “This is a family-owned business, but it operates like a big company. Julie is a very technical engineer and I have the sales and construction background. My past experience and her past experience complement each other. Our life experiences have taught us a lot,” says Deyulio.

Barown hopes to expand the services Lange currently offers their customers including construction administration and observation, professional services, and equipment services. “Engineers and contractors tell me they need Women Business Enterprise services beyond what they can currently find, so I would like to meet that demand,” Barown says. Deyulio looks forward to what the future holds. “We will allow our brand to grow bigger by bringing on additional competitive manufacturers and we are starting to see the marketplace demand other products. Some of the plans Julie has will put us a step ahead of the competition,” he says.

Stepping into the role of owner is a dream come true for Barown, and one she worked toward for more than a decade. “I am one of those people who gets something in her mind and doesn’t let go until it happens. I am very goal-oriented and driven in that way,” she says. In addition to owning J. Andrew Lange, Inc., Barown is involved in several leadership roles with state and local professional organizations. She is a board member of the Capital District Chapter of the New York State Society of Professional Engineers, Board Member of the Capital District Chapter of the New York Water Environmental Association (NYWEA), chairperson of the NYWEA Public Outreach Committee, and member of the NYWEA Diversity, Equity, and Inclusion Committee. Barown and her husband have three children, three cats, three dogs, and enjoy renovating houses as investment properties.

According to Barown, we still have a long way to go to make a future in science and technology accessible to women. “It’s not so much that the opportunities aren’t there,” Barown explains, “it’s that the environment isn’t always as inviting for women as it could be. Throughout my career, I’ve had to deal with being the only woman in the room, and on occasion, the comments, both direct and indirect, that come along with that,” Barown says. “If I’d had a thinner skin, I might not be where I am today. I’m not one to give up.”

  1. Andrew Lange, Inc. holds a Women’s Business Enterprise National Council certification, a Woman Owned Small Business (WOSB) certification, and a New York State Minority and Women-Owned Business Enterprise (MWBE) certification. To learn more about J. Andrew Lange, Inc., visit


“Immediately after coming onboard in 2018, I recognized that Julie had what it takes to be a successful business owner: smart, likeable, great work ethic and impressive educational background. Like my father, J. Andrew Lange, Julie is also a Rensselaer engineering graduate and a Professional Engineer. We were very fortunate to have found such a quality individual in Julie. J. Andrew Lange, Inc. and its employees pride themselves in a commitment to quality and marketplace focus. I am very pleased that Julie will carry the torch for both my and my father’s legacy in J. Andrew Lange, Inc. well into the future as a woman owned business.” – Margery Lange Keskin, Daughter of J. Andrew Lange and Former Owner of J. Andrew Lange, Inc.

Right Price Companies/RPC Technology: Role models for their community in the heart of Syracuse

By Sarah Hall

Darin and Paris Price are looking to create a legacy.

The Syracuse couple, who owns Right Price Companies and RPC Technology, hope to hand their business down to their children someday.

“We want Right Price to be in existence well after we’re gone,” Darin said. “We want it to be a company that is a pillar in Upstate New York for years to come.”

The Prices launched Right Price Companies in 2004. The firm provides commercial furniture to the corporate, education, healthcare, and government sectors. RPC Technology, which launched about seven years ago, made its mark in the industry participating in New York State’s New York State Broadband for All program as a value-added supplier, as well as a logistics material coordinator. The program seeks to bring broadband internet to underserved or unserved areas, where nearly one million New Yorkers, mostly in rural areas, do not have an internet connection (based upon 25/3 bandwidth connection).

Darin maintains that Right Price Companies’ primary goal is to provide solutions and excellent service to its customers.

“Our desire to provide superior service for our customer is what prompted our pivot into the technology industry,” he said. “While working with a client to provide both furniture and a paneling system, the client asked if we could also handle his computer networking and set-up. At the time, our company had a relationship with RMS, a technology service and solutions company, and together, we were able to deliver a complete solution exceeding our customer’s expectation.”

“It went so well that I had an ‘aha moment,’” Darin said.  “Our customers need a total solution. That was the birth of RPC Technology.”

Right Price and RMS merged and began working in the industry, bidding on and winning projects. SUNY Oneonta was its first substantial contract with fiber optic cable.

‘This project allowed us to see technology as our next business frontier,” Darin said.

RPC Technology strategy began planning to participate in the NYS Broadband for All prior to the announcement of grant awards. The program launched in 2016 with three phases of grant awards to telecom and cable service operators and providers, as well as municipalities, throughout the state over the next three years.

“As one of the few certified minority suppliers of fiber optic cable in the area, RPC became a key supplier of fiberoptic cable to cable service provider in Upstate New York that participated in the broadband program, addressing a vital need in Upstate New York.” Darin said.

“When we think about the personal aspect of high-speed broadband, we have to understand that the program allowed for a higher level of connectivity to the rural areas of New York State, especially now, because computer access is more important than ever before,” Paris said. “It’s so desperately needed for our children to learn remotely, for hospitals, businesses, not to mention your home. Not only did we see the benefits for our business, but we recognized the desperate need for the opportunity of expansion of fiber optic cable throughout New York State, especially its rural territories that had some level of access.”

Ultimately, the Prices said they are looking to be a full-service wholesale electrical supply distributor as well as an outside plant construction company. This aspect includes fiber cable deployment, antennae/line installation, and maintenance in relation to cell towers.

“As alumni of the Goldman Sachs 10,000 Small Business program, we have a very clear vision for our future growth,” Darin said.

The Prices also emphasized that RPC is one of the only minority-owned companies in the field. They are certified with New York State and New York City as a Woman/Minority Business Enterprise, as well as the New York Port Authority and the Mass Transit Authority. They are also registered with the National Supplier Development Council as a Minority Business Enterprise and the federal government as a Small Disadvantaged Business.

“We are a company that wants to work with everyone. We are a corporation first that just happens to be owned by a minority,” Darin said. “We’re not a minority first when we walk through the door. We build our reputation on the service and on our products.”

There are some, however, who balk at the MBE label.

“Some people have the stereotypes—the preconceived notions—that because you’re a minority business or a woman-owned business, that there’s going to be something different, they have to do; something different to deal with us,” Darin said. “We go through the many steps of certification to get into the door, to get a fair look-see at a project. Unfortunately, these same old stereotypes never seem to die.”

In reality, being an MBE just means that RPC is looking to make a relatively homogeneous field a little less so.

“RPC is an equal opportunity employer. We hire diverse candidates to go into an industry where there’s not a lot of diversity,” Darin said. “It is our responsibility to give our people a fair opportunity at these jobs.”

As a minority business, RPC is also focused on workforce development and hiring.

“We have a relationship with SUNY EOC, Jubilee Homes, and CNY Works,” Darin said.   

In particular, Darin and Paris’ goal is to bring in talented candidates from their neighborhood.

“We intentionally created our business in the heart of Syracuse,” Paris said. “One of our personal goals is to be role models for those in our community, the community that both Darin and I grew up in. It was very important for us to be able to let our community see a business prosper and to let them see themselves in it. They see business owners and people working that look like them.”

RPC is the culmination of Darin’s aspiration to start his own business, something he dreamed about way back when he was mowing lawns as a kid—and told Paris about it back when they started dating in the early 1980s.

“He always came to me with the idea that one day, he would be self-employed,” Paris said. “For a while, I didn’t understand the benefits of being the boss. But I definitely understand the benefits of it now. We are able to have a pride in ownership that, had he not been persistent about reaching his lifelong goal of being self-employed and owning our own business, we would not have the experience today.”

While there have been challenges, Darin said he would not change a thing.

“My worst day being self-employed doesn’t compare to my best day working for someone else,” he said. “[There’s a] sense of accomplishment and knowing that you started a business from the ground up and seeing how it has blossomed into something that is a legacy builder that you can then give to your children. Your children’s children can see the spirit of entrepreneurship within your family, which really encourages your children to do the same thing.”

Tax Provisions in the Build Back Better Act

Nicholas L. Shires, CPA, Dannible & McKee LLP

At the writing of this article, the Build Back Better Act (BBBA) was passed by the House of Representatives and sent to the Senate for deliberation. This bill, if passed by Senate, could drastically change the mindset of your tax planning in 2022 and beyond. It contains numerous provisions related to areas ranging from health care, climate change and immigration to education, social programs and, of course, taxes. While it is expected to undergo some changes before it is passed in the Senate, the legislation will likely undergo several more changes to get all of the Senate Democratics on board.

Funding for the sweeping package largely comes from tax increases on high-income individuals and businesses, but the law also includes tax breaks for eligible taxpayers. Here are some of the significant tax changes included in the bill:

Corporate Taxes

The bill imposes a 15% minimum corporate tax on corporations’ financial statement net income.  This reduces the benefit of numerous credits and deductions for high-income corporate taxpayers.  It also includes a 1% excise tax on companies when they buy back their own stock.

SALT Deduction

After negotiating numerous times, the BBBA plans a cap on the Federal deduction for state and local taxes, or SALT, at $80,000, up from the $10,000 imposed beginning in 2018.  The higher cap would be in place through 2030 and then revert to $10,000 in 2031.

Child Tax Credit

The bill would extend through 2022 the extra monthly payments per child that parents earning up to $150,000 are now getting. The legislation also makes the tax credit permanently refundable.

High Income Surtax

The BBBA would create a 5% surtax on individuals with a modified adjusted gross income (MAGI) that exceeds $10 million ($5 million for married taxpayers filing separately). It adds another 3% surtax on MAGI exceeding $25 million ($12.5 million for married taxpayers filing separately). The surtax would take effect for 2022.

Net investment income tax (NIIT)

The Act would expand the 3.8% NIIT to apply to the trade or business income of high-income individuals, regardless of whether they’re actively involved in the business. The income thresholds are over $500,000 for joint filers, over $400,000 for single filers and over $250,000 for married couples filing separately. The NIIT currently applies to business income only if the income is passive.

Renewable Energy Benefits

Some $300 billion is by far the largest component of the climate spending in the package, which would include expanding a number of tax credits for renewable power, electric vehicles, biofuels and energy efficiency.  The credits apply to businesses and individuals.

EV Tax Credit

Under the bill, a $7,500 consumer tax credit would be made refundable and expanded by up to $4,500 for electric passenger vehicles.  An additional $500 bonus would be added for vehicles that use batteries made in the U.S for a total of $12,500. The legislation also creates a new $4,000 tax credit for the purchase of used electric vehicles.

IRS Enforcement

The bill would give the Internal Revenue Service (IRS) an additional $80 billion to hire more auditors, improve customer service and modernize technology.  The Congressional Budget Office concluded IRS enforcement would raise $207.2 billion over a decade, or $127.2 billion after subtracting the $80 billion in additional funding for the agency.

At the point of writing this article, it’s impossible to say which of the proposed tax law changes will survive and be enacted into law. Additional tax provisions could be added, too. However, smart taxpayers will get up-to-speed on the Build Back Better Act’s tax proposal, so they’re prepared if/when they make it through the legislative process. If you have any questions regarding any of the current tax provisions and how they may impact you and your business, feel free to contact Nick Shires at or 315-472-9127.

Nicholas L. Shires, CPA is a tax partner at Dannible & McKee, LLP.  Nick has over 16 years of experience providing tax and consulting services to a wide range of clients, including individuals and privately held companies.

Why Do People Get Hurt?

Susan Geier Fahmy, Vice President, Director of Safety & Health Services, Lovell Safety Management Co., Inc.

What do we think of when we think of safety and people getting hurt? The first is the pain and suffering of the injured worker and the increasing costs of our workers’ compensation insurance. We see the immediate and obvious implications; however, we often do not recognize the giant cost factors that are lying just underneath our noses.

The lost time we will need to make up by hiring someone new or having our other workers fill in. The effect the injury will have on employee morale and productivity. The indirect costs of this injury, such as property damage and excessive amounts of time spent by management reporting on and following up on the incident.

The legal ramifications of the injury and will OSHA be brought in? Will we be sued or written about in the local newspapers? How will our customers react to it? Will our OSHA frequency rates and severity rates be affected? What will our experience modifier go up to? Will we still be eligible to bid on jobs?

It is clear that for many reasons we do not want to have workplace employee injuries. But, how do we avoid them? We create slogans, put up posters, do employee training, provide personal protective equipment, etc. Yet, we still have injuries. How do we explain why people get hurt?

Is it inattention, as many supervisors are prone to say, or unsafe conditions, poor training, inadequate personal protective equipment? Or is it a result of unsafe behavior? We have reported for years that 10% of injuries are from unsafe conditions and 90% are from unsafe acts/behaviors. Yet we spend most of our attention on ensuring that the physical environment is hazard free and we have met the details of safety regulations, all of which needs to be done. However, employees are still getting hurt.

For years now, safety professionals have talked about changing the “culture” of an organization to impact its safety program. But what does that mean to the supervisor on a worksite or an owner of a company trying to get the job done. How does he/she implement that?

We need to begin by looking at how we behave and understanding it, so that we can change it. Please note: behavior is an observable act, not an attitude or an emotion. We are not performing psychoanalysis; we are trying to affect the actions people take. Here are the ABC’s of behavior!

Antecedent:    The circumstance before a behavior occurs.

Behavior:        The action the person takes.

Consequence:  What happens as a result of the action the person takes.

An example of this …

You are driving and you see a yellow light, what do you do? (The yellow light is the antecedent). Most people, if honestly speaking, will speed up to make it through the light! (That is the behavior) What is the consequence? Usually, you will make it through the light and get to your destination faster and with no negative effects.

NOW… Let’s change just one thing. Imagine a police car sitting on the corner of the yellow light. What do you do now? Most people will slow down. Why? What has changed? We are now concerned that we might get a ticket. The fear of a change of consequence is what changed the behavior. How do we relate this to safety?

Let’s take another example. A piece of metal needs grinding (the antecedent). An employee begins work on the grinding wheel without safety glasses (the behavior). The supervisor walks past him and says nothing. The employee continues to have this behavior every time he has a grinding job. He goes for years with neither an injury nor a reprimand from his supervisor. The consequence is that he gets the job done with no problem. Then one day the grinding wheel breaks and pieces fly into his eye and he has a serious eye injury. The consequence has now changed and the employee will probably never perform this task again without the proper personal protective equipment because he will be afraid he will get hurt again. The same behavior could have been achieved, without the injury, if the supervisor had acted when he saw the behavior that was at risk and created a consequence for the employee that would have motivated him to do his job safely without him having to get hurt. This could have been a simple reprimand, write up, etc.

It all comes down to motivation. People perform “at-risk” behaviors because it is human nature to repeat what we have learned in the past. Most times, at-risk behavior is a short cut; it saves time, is convenient and we do not usually get hurt. There are no apparent negative consequences and the extra time and effort it takes to avoid at-risk behavior does not “immediately” offset the low risk of getting hurt. Add to that management often turning a blind eye to at-risk behavior, choosing rather to discipline the employee after he or she is injured.

It is management’s responsibility to provide the consequences prior to the injury. This will motivate the employee to avoid at-risk behavior. The only way to motivate is through consequences. Consequences provide the key to performance. People behave in ways that have been optimally reinforced in the past and avoid those behaviors that have had negative consequences.

How do we motivate employees to avoid “at-risk” behavior? We need to understand when and how we are working at risk and develop, and use, an alternative method. We need to understand how to do the job safely and develop consequences that the supervisor can use to motivate the employee to use safe behaviors and avoid at-risk behavior.

Factors that influence consequences include timing, consistency and positive vs. negative impact. Immediate, consistent and positive consequences have the greatest impact. It is important to identify immediately and consistently at-risk behavior. However, it is a myth that stopping unsafe behaviors will result in safe behaviors to occur more often. The reality is that for safe acts to occur more often they must be actively acknowledged and recognized. We must:

  • Develop both positive and negative consequences. Enforce safety rules and identify at-risk behavior. We need to have a disciplinary procedure for those employees who continue to perform at-risk behavior and an incentive program for those who act safely.

  • Instill accountability: Company owners, supervisors and employees all play a key role in ensuring a safe and healthy workplace. Owners are responsible for providing a safe and healthy workplace, providing the needed tools, protective equipment and training. Supervisors must be empowered to provide the employee consequences and employees must do their job utilizing safe behaviors.

We all need to take responsibility for safety. It must be an integral part of the way we work. That is the only way a truly safe and healthy workplace will exist.

Susan Grier Fahmy, CSP, is Vice President, Director of Safety & Health Services at Lovell Safety Management Co., LLC. You may contact Lovell Safety Management at 1-800-5-LOVELL or visit online at

Marijuana and the Workplace

By Diana Plue, Esq., Sheats & Bailey, PLLC

The Marijuana Regulation and Taxation Act (MRTA) amended Labor Law § 201-d to clarify that marijuana is a legal consumable product.  Employers may not discriminate against employees that use marijuana outside the workplace and outside of work hours.  This new law raised questions with regard to an employer’s ability to drug test for marijuana and enact disciplinary action for marijuana use.  NYS DOL recently issued guidance for employers with regard to these issues. 

The NYS DOL has stated that employers may have a written policy prohibiting the use of marijuana during work hours including breaks, while on employer property and in company owned vehicles.  An employee who takes a company owned vehicle home can be prohibited from using marijuana in the work vehicle even outside work hours.

Can an employer drug test an employee or potential employee for marijuana? 

  1. An employer may drug test for cannabis if a federal or state law makes it a mandatory requirement of the position or the federal contract makes it mandatory. For example, employees who drive commercial vehicles are subject to mandatory drug testing for commercial vehicles under 49 CFR Part 382. 

Please note that the Drug Free Workplace Act of 1988 does not mandate or authorize drug testing of employees.  Therefore, a federal contract that just states an employer must comply with the Drug Free Workplace Act of 1988, does not authorize a NYS employer to test its employees for marijuana. 

  1. An employer may drug test when required by a federal contract or to maintain federal funding.
  2. An employer may drug test, when the employee, while working, shows specific articulable symptoms of impairment that either decrease the employee’s performance or interferes with the employer’s obligation to provide a healthy and safe workplace.

A positive test for marijuana, by itself, cannot be used to make employment decisions regarding hiring, promoting or terminating an employee unless there is a federal or state law or federal contractual requirement that requires employees/workers to be drug free.  Therefore, unless there is a federal or state mandatory drug test requirement or a federal contractual drug test requirement for marijuana, employers should never require a pre-employment drug test for marijuana or perform random drug testing for marijuana.

The DOL guidelines clearly state that an employer can only drug test for marijuana for the above reasons.  Neither the DOL nor Labor Law § 201-d (4-a) mentions that an employer may take action such as testing because of a collective bargaining agreement.

What are articulable symptoms of impairment?  Per the NYS DOL, they are objectively observable indications that the employee’s performance of the duties of the position are decreased or lessened.  For example, the operation of heavy machinery in an unsafe manner may be considered an indication of impairment. DOL does not provide any further clarification or list of articulable symptoms but does state what cannot be cited as an articulable symptom. 

The following symptoms by themselves are not articulable symptoms of marijuana use:

  • Observable signs of possible marijuana use that do not indicate impairment on their own. For example, red eyes with nothing more does not indicate impairment because red eyes with no other symptoms could be from allergies or lack of sleep.
  • A positive drug test for marijuana usage by itself cannot serve as a basis for an employer’s conclusion that an employee was impaired. All the test will show is that there is cannabis in the employee’s system, which can be detected up to 30 days after use; the positive test alone does not show impairment.
  • The smell of cannabis on an employee, on its own, is not evidence of an articulable symptom of impairment under Labor Law §201-d. Use of cannabis does not automatically mean a person is impaired. 

Can an employer discipline an employee for marijuana use?

An employer may take adverse action against an employee:

  1. Who is using marijuana during work hours (including during breaks and during periods an employee is on call);
  2. Who uses marijuana on employer property;
  3. Who uses marijuana in company owned vehicles;
  4. Who is impaired by marijuana and exhibits specific articulable symptoms of impairment that
  • Decrease or lessen the performance of the employee’s duties or tasks;
  • Interferes with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards as required by state and federal occupational safety and health laws.
  1. When required to by State or Federal Law;
  2. When the employer would lose a federal contract or federal funding because of employees’ marijuana use. If a project requires employees to obtain a clean drug test to work on the project, employers should give notice of this requirement to its employees and the potential consequences if said drug test is failed.

Labor Law §201-d applies to private, state and local government employers.  Labor Law §201-d only applies to employees who work within NYS and are over the age of 21.  Marijuana use is still prohibited for anyone under the age of 21.  Employers cannot require employees to waive their rights under Labor Law §201-d.  For remote workers, the DOL does not consider a private residence a worksite within the meaning of Labor Law §201-d.  But an employer may act against a remote worker if the worker is exhibiting articulable symptom of impairment during work hours. 

An employer who violates Labor Law § 201-d by refusing to hire, refusing to promote or discharging an employee from employment because of said employee’s legal use of marijuana outside of work hours and off work property can be subject to civil penalties and to civil actions from their employees. 

Employers who wish to prohibit employees from working while impaired should have a written policy prohibiting such conduct and stating the consequences for working while impaired.  Employers need to train their supervisors on what type of symptoms of impairment to look for.  Employers should also update their work policies, including handbooks, to make sure their current policies do not run afoul of this new legislation. Employers must review and update any drug testing policy so it complies with The Marijuana Regulation and Taxation Act (MRTA) and Labor Law § 201-d. 

For more information or assistance in drafting a written policy on marijuana use and/or updating current workplace policies including drug testing policies to be compliant with Labor Law §201-d contact Diana Plue at Sheats & Bailey, PLLC, Tel: (315) 676-7314.

The information provided in this article is not intended to serve as specific legal advice for any particular situation.  Competent legal and experienced counsel should be consulted.

Bright Future Ahead for Construction Industry as Learn to Live with COVID-19

Earl Hall, Executive Director, Syracuse Builders Exchange

From the beginning of the COVID-19 pandemic, the construction industry and the skilled craftsmen and women who continued to work have been deemed a key component of New York State’s essential workforce.  Contractors and their employees, while not immune from contracting or spreading COVID-19, have been able to complete vital projects, while limiting the spread of COVID-19 by following the latest health and safety recommendations from the New York State Health Department, New York State HERO Act, Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC).

Unfortunately, with the rise of COVID-19 variants, such as Delta and Omicron, the New York construction industry is now subject to some of the same rules and regulations from 2020. Construction industry leaders believe that responding to the COVID-19 virus is of critical importance for the health and safety of construction workers throughout New York State, their families, and communities.

While over 80% of all New Yorkers are fully vaccinated, most industry leaders remain committed to encouraging all construction workers to get vaccinated unless there are underlying circumstances that would not permit one to receive the vaccine. Many believe a vaccinated workforce is vital protection for the employee and their fellow workers. A vaccinated workforce is also important for the industry and the contractors who have contracts in place to perform for a General Contractor or project owner. Penalties for non-performance or an untimely completion of a scope of work is real and can be devastating to any business owner who failed to anticipate labor issues on a particular project.

On November 5, 2021, OSHA announced that it published a new workplace safety rule through an Emergency Temporary Standard. On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA’s COVID-19 ETS.  If not overturned by the courts, this new OSHA requirement will cover all employers with federal contracts, as well as those employers with more than one hundred employees. Covered employers will have to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Additionally, many project owners, both public and private, are mandating all contractors and employees performing work on their site must be fully vaccinated or produce a negative COVID test result.  These requirements are mandatory for all employers regardless of the number of employees employed.

At a time where there remains a significant labor shortage, losing valuable employees from an employer’s workforce due to governmental regulations, and some or many employees choosing to not being vaccinated poses unimaginable challenges for construction industry employers.  Without workforce compliance, construction industry employees will miss out on valuable work hours, while many employers may choose not to bid projects for fear of not being able to supply the appropriate work force to complete the project on time. 

It is anticipated the industry will have a significant increase in building and infrastructure work over the next 5-7 years, in particular upstate New York.  This construction work is expected to last for many years, but to bid on and secure these projects will require that all associated with the employer meet the OSHA, New York State and/or project owner rules for mandated vaccination or weekly testing. To ignore these rules means losing out on the billions of dollars in future projects and job opportunities.  Additionally, ignoring such requirements exposes construction contractors to increased pressure to supply skilled labor to their projects, thus potentially jeopardizing the long-term viability of an employer.

While respecting personal opinions of whether or not vaccines should be mandated as a condition of employment, one being vaccinated addresses a government identified safety issue for employees and their coworkers while not limiting potential employment opportunities.  And, equally as important, not causing undue pressure on employers who may not be able to supply enough skilled labor during an historic labor shortage era.

This is the new reality during the COVID-19 pandemic – governmental and project owner mandates on employers and employees, all while employers endure a labor shortage and supply chain crisis.  The industry cannot afford to lose any more employees from the workforce for any reason.  Contractors rely upon a skilled and available work force.  Each employee leaving the construction workforce poses great risks to contractors and project owners alike. 

In the end, the COVID-19 vaccine will be the antidote that will attack a pandemic which has limited our freedoms and may threaten our future.   Regardless of where one’s position is on vaccine mandates, personal freedoms, freedom of choice, etc., construction industry leaders must address this issue as an unvaccinated workforce impacts more than just the unvaccinated employee.  It impacts others on the job site and the very contractors who employ them. 

During an unprecedented era of significant labor shortages and supply chain disruptions in the construction industry, employers today cannot afford to lose employees from their workforce.  The project owners and governmental mandates may get more demanding over the next few months before such may be relaxed in 2022.  While learning to live with COVID-19 in our day to day lives will someday be the new norm, it is evident project owners and government officials today are not ready to address this.

Contractual Risk Transfer Essentials

In addressing contractual risk transfer when hiring sub-contractors to work on your behalf in New York State, there are some key components to be aware of. We will work through those key points here.

While working through your individual contracts, several areas of the agreements should be evaluated, including but not limited to:

  • Parties to the agreement
  • Scope of work being provided (including a detailed description) when hiring a sub-contractor
  • Hold harmless, defense and indemnification requirements within the agreement
  • Insurance requirements of the agreement
  • For construction situations: a safety statement/requirement of the sub-contractor within the agreement

The hold harmless/indemnification requirements of the agreements also need to be reviewed to determine if they appear to be worded properly for the state where the work/service is going to be preformed. This is even more important in New York State, where NY Labor Laws impact construction projects. NY Labor Laws 240 and 241 impose duties on the “Property Owner” for safety issues on their jobsite that they do not control on a day-to-day basis. This is something that should be reviewed by your risk management and legal experts.

Insurance Requirements are another critical item and our focal point at OneGroup. We’ve found in many cases that both attorneys and architects are not comfortable detailing insurance requirements in agreements. Many may use wording that was used 10 to 20 years ago. Some also use wording from standard AIA contracts for insurance that can be vague, lack detail and is sometimes confusing. Paying close attention to the proper and applicable coverage form numbers is critical.

Reviewing these insurance requirements to make sure they are comprehensive and that they best protect the organization implementing the contract is very important. Internally, we make sure details like limits and key coverage areas are spelled out by line of business so that the coverage is triggered to protect the proper party. In some cases, the actual policy conditions or endorsements will only provide coverage if it requested in a written agreement executed prior to a loss.

Additional insured status for the proper party is an example of this. It needs to be requested on a “primary and non-contributing” basis because many carriers have wording on their policies stating that coverage for the additional insured will be on an “excess” basis, unless a written agreement executed prior to the loss requires that the coverage be on a primary or non-contributing basis. (“Excess” – meaning the party implementing the contract as the additional insured would have to exhaust their own policy limits before their sub-contractor’s/vendor’s policy would come into play)

Most situations will require:

  • Workers’ compensation and employers’ liability
  • Disability benefits (DBL)
  • General liability
  • Automobile liability
  • Umbrella liability (limits of liability in line with the hazard level of the service being provided)

List of “optional” special insurance policies that may be needed based on the scope of work and services being provided: 

  • Professional liability (engineering or architectural services typically)
  • Cyber liability (IT services)
  • Pollution/Environmental liability
  • Riggers’ liability
  • Builders’ risk or installation floater – property coverage where something is being built or installed for the property owner.
  • Owners’ and Contractors’ Protective policy (OCP policy) based on the type of construction project and exposure presented to the property owner as the owner for the project being undertaken.