None of the growing number of shelter in place orders (“Order(s)”) in and around Dallas have defined “residential and commercial construction,” leaving the question of whether a salesman (and by association, his company) risks being ticketed, arrested or worse in this hyper- sensitive time for our hyper-sensitive culture. Consider that even late last year, our definition of “normal” include a lot of people actively seeking or creating opportunities to be offended at every turn. Now multiply that by a lot, and that’s the emotional environment that any outside sales force will almost certainly encounter while people remain subject to shelter-in-place orders. Unfortunately, many people are going to be resentful that others are outside, where they are not comfortable going, and they are going to be fearful that these strangers pose an infection risk.
Still, door-knocking and in-person solicitation remain the life’s blood of the trades we like to call the 4 R’s (repair, restoration, renovation, and roofing). Thus, the question is whether it is possible to continue to engage in outside sales in the COVID-19 enviornment? Answer: Yes, for now.
With the exception of Austin, all of the Orders we’ve reviewed list residential and commercial construction as a “Essential Business,” and sales is neither allowed nor forbidden. Bottom line: enforcement is currently light, and there is a sufficiently strong nexus between traditional construction activity and the sales activity which supports it, that field sales appears to be permissible for now, with a few cautions.
First, work with your attorney to develop a plan for your sales team. Consider your risk tolerance – will you require, or merely allow, outside sales in areas subject to an Order?
In either case, consider the utility and appropriateness of requiring your sales staff to sign disclaimers, drafted to serve your company’s particular needs. One significant drafting consideration is whether your sales team consists of employees or independent contractors. Don’t assume the law will find your sales team to be contractors, even if you pay them 1099.
Train your sales team to know and follow the latest guidance and best practices from the CDC and State and local health officials. Provide them with “COVID PPE,” which is an unofficial term I created, meaning things like goggles, hand sanitizer, alcohol wipes/swabs; disposable gloves, face shields, body-length aprons, respirators, etc. If it would make a nervous property owner more comfortable talking to a stranger during this crisis, then it is COVID PPE, and you should supply it to your field sales people. Train them on new best-practices to alleviate concerns, including avoiding passing paper contracts back and forth by closing a deal via e- signature software, or passing an iPad, tablet, or other device after wiping it down between passes with a disposable alcohol wipe.
Finally, consider protecting your sales force, your crews, and your business by working with counsel to draft a COVID-19 addendum to your contracts, addressing relevant current issues, including delay, and also requiring requirement that the property owner affirm that no one in or at the property has expressed COVID-19 symptoms in the 14 days prior to signing the contract, and reaffirming same at the time work commences.
Brian Benitez is a partner at Ensley Benitez Law, P.C., whose practice emphasizes litigating matters important to small and medium businesses arising from areas including Construction Law, Employment Law, Contracts Law, Texas Property Code Liens, and Agency Law (e.g. representing businesses against government entities, such as OSHA, EEOC, TDI, TX Comptroller). Ensley Benitez Law, P.C., 8140 Walnut Hill Ln., Ste. 835, Dallas, TX 75231
469-501-5562, brian@eblawtexas.com.
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