First, as a rule, any late cancellation fee must be reasonable and bear some relationship to the actual costs and expenses incurred in processing the job and then canceling it (e.g., 10-15%). For special order products, a higher amount may be defensible, otherwise higher amounts will be seen as penalties and will not be enforceable.

Second, you do not ever want to go to court to recover a late cancellation fee. A court will demand that you prove your actual losses and that is not something you want to have to do. Besides, the court and/or the customer’s attorney may decide to inquire into your in-home sales process or the paperwork you used to close the deal and you can easily find yourself having to defend a counterclaim.

Third, the true purpose of a late cancellation fee is to allow you to save a deal by showing the customer that if they cancel, you will have to impose this fee on them. However, because (as noted above), you do not want to go to court to recover a late cancellation fee, this deterrent is much more effective if you have a deposit already in hand. If after alerting the customer to the late cancellation fee the customer really wants to cancel, you can deduct the late cancellation fee from their deposit and refund the balance to them.

Many will say, “How late should I allow a customer to cancel?” There is no exact science, but NAPAC recommends that, at most, you consider a “late cancel” to be an effort by a customer to cancel a job within 1-2 weeks of close, but in all cases prior to start of any product being manufactured or obtained. After that time frame, the customer is simply in breach of contract if they do not allow the work to be done. If you find yourself with a customer who wants to cancel 2+ weeks after signing the contract or after you have ordered/possess the products, you will have to decide if you want to work out a settlement with the customer or push for performance of the contract. If the customer refuses to cooperate, then legal action may be necessary.

Obviously, this is a worry for anyone operating in Delaware, but even non-Delawareans should take heed. California has a similar provision in cases of willful violations, and usually, once a handful of states start down a particular road, many others follow.

For NAPAC members operating in Delaware and who want to understand their options, NAPAC reminds you that NAPAC’s Installer Protocols: Delaware and Understanding Delaware’s 1099 Subcontractor Law are available in the NAPAC Store.

The FTC had previously stated that after its announcements, it would not pursue this topic except as to individual companies where the FTC saw deceptive practices. Unsurprisingly, that appears to not be the case. NAPAC has learned that a number of window companies have recently received a letter from the FTC essentially stating that the FTC has reviewed marketing material published by the company and the FTC has concerns over certain energy efficiency statements. The FTC asks the company to either provide scientific support for the energy efficiency statements or advise when the company will remove such energy efficiency statements. The FTC has also taken the unusual step of publishing the letters on its website.

NAPAC continues to warn members about using marketing materials and presentations that have not been vetted for legal compliance, especially those pieces that have come from manufacturers, consultants, or media companies that have no understanding as to the legalities within our industry.

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For those who want to “get ahead” of the FTC crackdown, and who want to be able to safely make energy savings claims in the future, NAPAC offers its Window Indagate Savings on Energy (“WISE”) Project. WISE was undertaken to create scientifically defensible savings estimates on the average home. In other words, the WISE Project can now provide typical energy cost savings for a residential customer upgrading to a NAPAC Member’s specific energy efficient window from either single pane or double pane clear glass windows. These savings can be marketed by the NAPAC Member as both energy saving percentages and actual dollar saving figures. Further information on the WISE Project can be found HERE.

Most companies, when conducing internal investigations into a theft, alleged sexual harassment, or some other complaint, prefer to keep the matter quiet while the investigation is underway. However, in its recent decision, the NLRB stated that the only instances where a company can even request confidentiality from its workers would be if (i) a witness needs protection; (ii) evidence is in danger of being destroyed; (iii) testimony is in danger of being fabricated; or (iv) there is a need to prevent a cover-up.

In order to satisfy this standard, you must evaluate each investigation on a case-by-case basis and isolate those factors that justify interfering with employees’ rights to discuss the terms or conditions of their employment, which is protected speech under the National Labor Relations Act, and which for its own ridiculous reasons, the NLRB thinks are being infringed if employees are either asked or instructed to not discuss an ongoing investigation.

In light of this decision, you should amend any company policy that prohibits, or even recommends, that your employees refrain from discussing an internal workplace investigation with their coworkers. Instead, at the start of any investigation, you should evaluate if any of the above four factors apply. If any do, this should be memorialized in writing.

In the e-mail, the EPA Compliance Officer stated that the EPA has directed its Compliance Officers to increase enforcement activity in both authorized states and “EPA-only” states. This likely means that the EPA is not thrilled with many authorized states’ enforcement activity to date. The most serious risk with the EPA overseeing an enforcement action in an authorized state is that the EPA’s penalty provisions, which are usually considerably larger than the penalty provisions in authorized states, will apply.