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"What's In A Name?” Professional Roofing (MaRCH 2017)

Protecting your company's trade name is a necessary part of doing business

by Scott D. Calhoun

Many contracting companies use logos, nicknames and trademarks to differentiate themselves from the competition. This strategy often is an integral part of a company's overall marketing efforts and can be effective. But the use of trade names, trademarks and the like carries with it the responsibility of complying with the legal requirements for their use and protecting your ownership of them.

Some definitions

The use of any shorthand reference to a company's name constitutes a trade name. People often refer to a trade name as a DBA (short for "doing business as," or d/b/a). For example, a business with the formal name XYZ Roofing Contractors Inc. might want to only put the name "XYZ Roofing" on the sides of its trucks and on brochures or marketing materials. Or a corporation might have as its formal name John Q. Public Inc. but operate its business as Johnny's Roofing. In both cases, the companies are using trade names.

A trademark differs from a trade name in that a trademark attaches to a particular product or service whereas a trade name is used in connection with an overall business. For instance, a roofing contractor (such as XYZ Roofing Contractors Inc.) might develop a unique catch phrase (such as "this city's best roofers") to be associated with its services. The company is not using a shorthand phrase to refer to the business in general; instead, it is using its mark to refer to its services. In a similar way, the company could develop a logo to be used with its services.

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Federal and state governments are cracking down on the underground construction economy.

by William E. Burnett

Unscrupulous contractors who are a part of the underground construction economy pose challenges to professional contractors who operate their businesses lawfully. These contractors, who also are referred to as part of the "informal" or "shadow" construction economy, refuse to play by the same rules as reputable contractors. As a result, lawful contractors are placed at a disadvantage in competitive bids and are losing job opportunities to employers that pay their employees under the table or intentionally misclassify them as independent contractors.

Not only does the underground construction economy affect state and federal coffers, but it also places great social burdens on underground workers. Thankfully, federal and state agencies have increased their efforts to combat the underground construction economy, which, in turn, will help restore fair competition.

The common problem

The underground construction economy is composed of workers who are not reported on employers' payrolls or intentionally misclassified as independent contractors. Although reputable employers can unintentionally misclassify workers as well, most enforcement efforts are directed at employers that engage in intentional misclassification schemes.



The ACA is in full effect with no remaining implementation postponements

by Scott D. Calhoun

The Patient Protection and Affordable Care Act, commonly referred to as the Affordable Care Act (ACA) or Obamacare, was enacted in March 2010 and has been implemented in phases during the past several years. Several ACA requirements governing health insurance policies were put into effect almost immediately. However, various regulations were enacted that postponed the mandate for employers with 50 to 99 full-time employees to provide health insurance to their employees until Jan. 1, 2016. The postponements have now ended.

Following is a summary of some of the requirements imposed on employers with 50 or more employees as of Jan. 1, 2016. If your company falls within this category of employers, you need to be aware of your responsibilities under the law.

Summary of requirements

Beginning this month, the employer mandate rules require employers who have 50 or more full-time equivalent employees (FTEs) to offer health insurance to these employees or potentially pay fines. The rules took effect Jan. 1, 2015, for employers with 100 or more FTEs. (See "How to calculate FTEs," for more information.)



Remember your obligations under the Americans with Disabilities Act.

by Philip J. Siegel

This past summer, the American Medical Association (AMA) officially designated obesity as a disease. This announcement may have significant legal consequences for employers because obesity now may be considered a disability for purposes of the Americans with Disabilities Act (ADA), particularly in light of the 2008 ADA Amendments Act (ADAAA), which greatly broadened the coverage under the statute and promoted a less restrictive interpretation of the disability definition.

If obesity is a disability, you will be required to provide reasonable accommodations to obese individuals to assist them with performing their essential job functions.


The ADA prohibits employers from discriminating against a "qualified" individual with a disability because of that disability with regard to various aspects of employment. To establish a discrimination case under the ADA, a plaintiff must show he or she is disabled; is a qualified individual; and was subjected to unlawful discrimination (or an adverse employment action) because of the disability.



Stephen M. Phillips


“Are You Covered?” (Your CGL policy may or may not cover breach of contract claims), Professional Roofing, January 2009

“ConsensusDocs 750 is a different version of an earlier AGC subcontractor form,” Professional Roofing, Professional Roofing, April 2008

“AIA Issues New Standard Construction Contracts,” 

“Determining Damages,” Professional Roofing, December 2007

“State immigration laws increase employer liability,” Professional Roofing, August 2007

“It’s important to understand the effects of naming additional insureds,” Professional Roofing, April 2007

“H-2B Visas may be an option for Contractors in need of employees,” Professional Roofing, December 2006

“Electronic verification of employees is likely to be required as the immigration debate intensifies,” Professional Roofing, June 2006

“Dispute Resolution Depends On The Way Courts Interpret Contracts,” Professional Roofing, February 2006

"More States Have Enacted Construction-Defect Statutes That Can Benefit You,” Professional Roofing, October 2005

“When You Submit Payment Requests, Release Language Becomes Crucial,” Professional Roofing, June 2005

“Handling Volatile Material Pricing,” Professional Roofing, February 2005

“Are Liquidated Damages Enforceable?” Professional Roofing, October 2004

“Contract Discrepancies,” Professional Roofing, June 2004

“Precedents and Contract Provisions,” Professional Roofing, February 2004

“Building Codes and Contractor Liability,” Professional Roofing, October 2003

“Spotlight on Spearin,” Professional Roofing, June 2003

“Understanding Payment Provisions,” Professional Roofing, February 2003

“Bid Protests,” Professional Roofing, December 2002

“Responsibility and Responsiveness,” Professional Roofing, October 2002

“The Mold issue can be overwhelming– unless you understand its complexities,” Professional Roofing, September 2002

“Indemnification case studies,” Professional Roofing, April 2002

“Scrutinizing indemnification clauses,” Professional Roofing, February 2002

“When are you liable for Delay Damages?” Professional Roofing, October 2001

“Can a statute be stopped?” Professional Roofing, June 2001

“The problem with pollution exclusions,” Professional Roofing, February 2001

“How to Combat Proprietary Specifications,” Professional Roofing, June 2000

“Naming Other Parties As Additional Insureds,” Professional Roofing, April 2000

“Avoiding Problems With Defective Materials,” Professional Roofing, June 1999

“Making Sense of AGC Provisions,” Professional Roofing, March 1999

“Knowing the Limitations: When a Contractor Is Responsible,” Professional Roofing, September 1998

“Roll-ups: Changes in Legal Ownership and Management Structure,” Professional Roofing, September 1998

“Knowing Where Responsibilities Lie: Roofing Contractors Need to Become Familiar With Changes to AIA Construction Contract Documents,” Professional Roofing, February 1998

“Residential Roofing Warranties: Limiting the Liability,” Professional Roofing, September 1997

"Sticks and Bricks: Roofing Construction Technology for Lawyers," ABA Forum on the Construction Industry, November 1995

"Contractors Rights Versus OSHA Authority When OSHA Wants To Inspect Your Jobsite," Benchmark, March 1995

"OSHA's New Fall Protection Standard," Professional Roofing, March 1995

"Contractors Pull Together to Construct Contractor Forms," Professional Roofing, October 1994

"Liabilities of Parties Engaged in Re-Roofing Construction Projects," U.S. Department of Energy/Oak Ridge National Research Laboratory, August 1994

"Contractor's Failure to Inquire Upon Recognizing Ambiguity in Specifications Precludes Recovery of Extra Costs," National Roofing Legal Resource Center, The Benchmark, January 1994

"The Facts on Roofing Warranties," Engineers Digest, February 1993

"Watch Out for Pitfalls in Applicator Agreements," Professional Roofing, July 1990

"Legal and Insurance Considerations Pertaining to Contractors' Handling of Asbestos;" paper delivered as part of Asbestos Roofing Course, Georgia Tech Research Institute, August 1987, Asbestos Supervisory Course, Georgia Tech Research Institute, June 1988

"Juries Award Substantial Damages in Roofing Cases," National Roofing Legal Resource Center News, February 1984

"The Pre-Job Roofing Conference," RSI Magazine, February 1982

"Legal Consequences of Licensed Applicator Agreements Between Single Ply Manufacturers and Roofing Contractors," 1981

"Statute of Limitations A Key Issue In Outcome Of Roofing Lawsuits," National Roofing Legal Resource Center News, November 1980

"Concentration of Ownership of the Mass Media: An Examination of New FCC Rules On Cross Ownership of Co-Co-Located Newspapers and Broadcast Stations," 24 Emory Law Journal 1121, 1975

Philip J. Siegel


“Obesity as a Disease: A Reminder of Employer’s Obligations Under the Americans with Disabilities Act,” Professional Roofing (January 2014)

“Staying Above Board,” Professional Roofing (March 2013)

“Don’t Blunder the Benefits,” Professional Roofing (January 2012)

“Ask the Right Question,” Professional Roofing (May 2011)

“A Proper Investigation,” Professional Roofing (October 2007)

“Can I See Your Social Security Card?” Professional Roofing (February 2007)

“Recent court cases reiterate the importance of treating employees appropriately,” Professional Roofing (August 2006)

“Beware of the Wage & Hour Investigator,” Professional Roofing (April 2006)

“Keeping Former Employees Away From Your Customers”, Professional Roofing (December 2005)

“Illegal Immigrant or Independent Contractor,” Professional Roofing (August 2005)

“Should I Cash This Check?,” Aquatech Newsletter (publication of Aquatech Corporation nationwide co-op of swimming pool contractors) (Author: “Workers’ Comp and Employer Rights”, Professional Roofing (April 2005)

“Should I Cash This Check?” MarketTracks (publication of the AMAROK nationwide co-op of independent gypsum and drywall distributors) (December 2004)

Avoiding Common Legal Taps”, Professional Roofing (December 2004)

“Overtime!”, Professional Roofing (August 2004)

“Collecting Attorneys’ Fees,” The Rooftopper (publication of the Roofing & Sheet Metal Contractors Association of Georgia, Inc.) (April/May/June 2004)

“Should I cash this check?” Professional Roofing (April 2004)

“Paying Prevailing Wages,” Professional Roofing (December 2003)

“Should You Be Watching,” Professional Roofing (August 2003)

“Those Traveling Times,” Professional Roofing (May 2003)

“An Age Old Problem,” Professional Roofing (August 2002)

“Understanding Racial Harassment,” Professional Roofing (June 2002)

“To Arbitrate or Not to Arbitrate,” Professional Roofing (December 2001)

“Recent Ruling of the Georgia Court of Appeals,” The Rooftopper (publication of the Roofing & Sheet Metal Contractors Association of Georgia, Inc.) (November 2001)

“An Introduction to OSHA’s Recordkeeping Regulation,” Focal Point (publication of Associated Builders and Contractors of Georgia, Inc.) (Fall 2001)

“Revised Record-Keeping Rule,” Professional Roofing (August 2001)

“Pass the Salt & Pepper,” Professional Roofing (April 2001)

“You can leave, but you can’t take it with you,” Professional Roofing (December 2000)



“What’s in a name? Protecting your company’s trade names and trademarks,” Professional Roofing, March 2017 Issue

"Time Is Up: The ACA is in full effect with no remaining implementation postponements," Professional Roofing, January 2016 Issue

"Protecting Your Assets: Properly structuring a corporation is essential for liability protection," Professional Roofing, January 2011 Issue (Co-Authors: Stephen M. Phillips & Scott D. Calhoun) 

"(Sales) Taxing Matters: If you perform out-of-state work, know your tax obligations," Professional Roofing, August 2008 Issue

William E. Burnett


"An Unfair Market: Federal and state governments are cracking down on the underground construction economy," Professional Roofing Magazine, May 2016

"Disputing the Details: Contractors should closely read the terms and conditions found on invoices and other forms to understand their rights in commercial transactions," Professional Roofing Magazine, September 2016