By Trent Cotney, Ï㽶´«Ã½ General Counsel
Subcontracting may be a practical necessity in the roofing industry, especially during periods of labor shortages or in areas experiencing growth. However, with increasing scrutiny from immigration enforcement agencies, roofing contractors must ensure their use of subcontracted labor does not inadvertently expose them to legal liability. Although subcontractors generally are responsible for verifying the work eligibility of their employees, general contractors can face consequences if they are found to have knowingly allowed unauthorized workers on their job sites or ignored obvious signs of noncompliance.
To reduce risk, roofing contractors always should require written subcontractor agreements that specifically mandate compliance with federal and state immigration laws. These agreements should obligate the subcontractor to complete and retain all required I-9 forms and certify every employee working on the job site is legally authorized to work in the U.S. It is also advisable to include an indemnification clause that holds the contractor harmless in the event of any violations caused by the subcontractor’s failure to comply with applicable immigration regulations. Provisions that require the subcontractor to cooperate with audits or investigations can also provide important legal protection.
Contractors also should take reasonable steps to vet subcontractors before allowing them on the job site. This includes confirming the subcontractor is operating a legitimate business, has a valid tax identification number and carries adequate insurance. Contractors should inquire into the subcontractor’s hiring and onboarding practices and whether they use any third-party staffing agencies. Although roofing contractors are not responsible for directly verifying the documentation of subcontractor employees, they can and should request written confirmation that those employees have been properly vetted and authorized.
It is important for contractors to understand what they are allowed to request under the law. A contractor cannot legally demand to see the individual immigration or employment records of a subcontractor’s employees. However, it is permissible to require subcontractors to certify that I-9 forms have been completed and to establish job-site protocols, such as requiring all subcontractor employees to wear identification or branded apparel. These practices help maintain clear distinctions between the contractor’s employees and subcontractor crews, which can be important in the event of a government inspection or legal dispute.
Contractors must also avoid treating subcontracted workers as if they are their own employees. Exercising too much control over a subcontractor’s workforce—such as directing individual tasks, assigning hours, or providing tools and materials—can lead to allegations of joint employment. If a government agency determines a contractor functioned as a joint employer, the contractor may be held responsible for I-9 violations and subject to civil penalties. Clear separation of roles and responsibilities is not just good legal practice; it is essential for risk management.
In addition, roofing contractors must not turn a blind eye to red flags. If a subcontractor is paying workers in cash, has no foreman or supervisor on site, or repeatedly brings in unmarked trucks with new faces every day, these could be signs of undocumented labor or misclassification. Contractors who ignore these signs could face charges of constructive knowledge or willful blindness both of which are sufficient to trigger enforcement actions.
Finally, contractors should not attempt to use subcontractors as a shield for noncompliance. If the subcontractor functions merely as a labor broker and does not control its own workforce or if the contractor manages the work directly, the legal fiction of subcontracting will not protect against liability. Courts and enforcement agencies look at the realities of the working relationship not just the label placed on it. Roofing contractors should structure and document their subcontractor relationships carefully and ensure subcontracting is not being used to avoid compliance with labor and immigration laws.
Immigration enforcement remains a significant area of concern for the roofing industry. Roofing contractors who engage subcontractors must take proactive steps to protect themselves while ensuring their worksites comply with the law. This means using clear, enforceable subcontractor agreements, choosing reliable business partners and maintaining clear operational boundaries. With thoughtful planning and consistent oversight, contractors can reduce their exposure while supporting legal and ethical labor practices.
This article is provided for general informational purposes only and does not constitute legal advice. The content is not intended to create and does not constitute an attorney-client relationship. To reach Trent Cotney, Ï㽶´«Ã½â€™s general counsel, you can contact him at (866) 303-5868 or trent.cotney@arlaw.com.
