The perils of the moonlighting super
Habitat Magazine
By: Karen J. Bannan
08 November 2018
A Queens co-op board recently terminated a staff member. After his
firing, the former staffer continued to hang around the building, doing
freelance home-improvement work for shareholders.
“The board president thought there was a policy in place that would
prevent that, but if there was, it wasn’t being enforced,” says Theresa
Racht, an attorney for the building. “Now they have a terminated staff
member who has been banned from the building doing work for a
shareholder and still maintaining access.”
Traditionally, residents of New York co-ops and condos have called on
their supers and other staffers to perform minor jobs that fall outside
the auspices of his or her official duties. Many co-ops and condos even
encourage the practice, as a low-cost service to residents and a way to
nurture loyalty in the staff. It’s only recently, however, that boards
are recognizing the myriad problems associated with this type of
arrangement. From lack of licensing to worker’s-compensation conflicts
to potential insurance claims, attorneys and board members have a lot
to think about – and legislate.
The biggest issue is liability, says attorney David Berkey, a partner
at Gallet Dreyer & Berkey. A board could face claims if work done
after hours by an employee causes damage to the building or a third
party, or injury to the employee. For instance, if the super is putting
in a new sink and there is flooding that damages a unit below, it’s not
always clear whose insurance company – the building’s or the
homeowner’s – is responsible.
“There are several liability concerns,” adds Berkey. “Sometimes the
co-op or condo board is viewed as a joint employer, especially if that
employee gets hurt working in the tenant shareholder’s or unit-owner’s
apartment.” The board can also face liability if someone is injured
onsite or if the superintendent’s work is sub-par.
There are several ways a board can protect itself and its unit-owners
or shareholders. Berkey advises his clients to be “ultraconservative”
and prohibit the staff from doing any work outside of their official
duties in a building. If the board or residents absolutely insist on
allowing it, he suggests restricting the types of activities that can
be performed.
“You’re looking for acceptable-risk items – changing washers on a sink
or a speedy connector on a toilet,” he says. In such cases, adds Racht,
it is also important for boards to require both the employee and the
shareholder or unit-owner to sign an indemnification contract and for
the employee to hold his or her own insurance. “If you’ve got a super
who is also a general contractor who is licensed and insured, it could
be okay,” she says.
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. “They’re looking to create new rules, add
them to the house rules, and issue memos to inform shareholders. Right
now, shareholders don’t realize that they’re playing Russian roulette
by hiring a building employee. They don’t realize their homeowner’s
policy is not going to cover them if there’s a problem.”
Bardecka says her board is also looking into indemnification agreements
as well as educating the staff as to the personal risks they may face
by working as an independent contractor.
Once a board acts to forbid or restrict moonlighting by staffers, the
next step is enforcement of the rule. “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.”
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