How to Stop Ex-Employee Soliciting Work as an Engineer 7

[EngineerByDay]

There was a man (non-engineer) who used to do design drafting on a contract basis for my firm twenty years ago, prior to my hire. My firm is a design engineering firm that produces construction drawings for commercial construction. The man established contact with many of the company's Design-Build clients and then left the company. For the last twenty years he has been soliciting work from these Design-Build contractors, completing the drawings, and then paying various PEs to stamp them for him. In 2007, the state board gave him a cease and desist order, but he has only gotten smarter with his actions. His name never appears on any of his drawings any longer, but we all know that he is doing the work. Currently, he has a retired Civil Engineer stamping his HVAC drawings. If that man is turned it, then he will just move to another PE to stamp them. How do you stop a guy like this? Obviously, he is stealing work from my company, but more importantly, he is a total fraud who leads all his clients to believe he is qualified to do this work. The Design-Build contractors don't care, simply because they are getting stamped drawings at a reduced price. The state board wants a smoking gun dropped in their lap. He is too smart for that. Please help!

 

[JedClampett]

We have competitors who can do a project cheaper than us. Everyone does. We make up for it by adding more care and knowledge to our designs. Plus we're around to respond to questions for years and years after the design is complete. If this guy is doing designs and they work every time, maybe he's right and you're wrong, regardless of the legal niceties of licensing and sealing.
Finally, how about throwing some blame toward the design builder who's buying his services? I can only hope that they end up paying whatever they've saved times a multiple of 50 for just one of his designs.

 

[wroggent]

In two states I've lived in:

Advertising engineering services if you are not a PE or not representing a registered firm - Illegal
Creating drawings or other engineering products if you are not a PE or being supervised by one - Illegal (except for certain manufacturing and utility exemptions)
Telling a customer that you will hire a PE to stamp drawings that you create - Not Illegal
Hiring a PE to stamp drawings you create - Not Illegal
Being hired to apply your stamp to drawings someone else created not under your supervision - Illegal


This is not a substitute for professional legal advice.

 

[bones206]

I would be interested to see how a case like this would turn out in court. Didn't someone get the book thrown at him for giving his opinion about the timing of traffic lights?

 

[TehMightyEngineer]

Not to start too much into that tangent but that eventually got thrown out last I recall. Rightly so in my mind, there are plenty of engineering professions where an engineering license is not required. Using the title "engineer" should not always be considered holding out as a professional engineer IMO.

Ian Riley, PE, SE
Professional Engineer (ME, NH, MA) Structural Engineer (IL)
American Concrete Industries

https://www.facebook.com/AmericanConcrete/

 

[SandCounter]

If your jurisdiction is Kentucky, note the following from the Board's website:

https://kyboels.ky.gov/Getting-Licensed/Pages/Getting-a-Firm-Permit.aspx[/URL]]A business entity must have a Kentucky licensed Professional Engineer (Professional Land Surveyor) on staff who will be in responsible charge of the engineering (land surveying) services provided in the Commonwealth of Kentucky. If more than one place of business is maintained in Kentucky, a different Kentucky licensed Professional Engineer (Professional Land Surveyor) must be in responsible charge of the engineering (land surveying) work for each office and be located at that facility. [highlight #FCE94F]A licensee who renders occasional, part-time, or consulting services to or for a business entity shall not be in responsible charge[/highlight].

The Kentucky Board of Engineers offers a means to submit complaints:

https://kyboels.ky.gov/Consumer-Information/Pages/Making-a-Complaint.aspx

I used to count sand. Now I don't count at all.

 

[TehMightyEngineer]

So, I looked up the professional engineering laws of Kentucky so we can discuss OP's specific situation. I've attached the PDF for anyone else to review.

By my understanding the actions OP describe are specifically illegal in KY unless the engineer is a officer or part-owner of the former employee's business.

(d) A professional engineer who renders occasional, part-time, or consulting engineering services to or for a business entity required to hold a permit from the board under this section shall not be designated as the person in responsible charge of the engineering work unless the professional engineer is an officer or owner of the business entity.

Potentially this could be skirted if the former employee's company is not considered to be doing engineering (just drafting). Alternatively the engineer could be made a part owner of the company. By my not-a-lawyer understanding, and by OPs description, it appears that what he's doing should be considered practicing engineering without a permit.

The definition of engineering in KY is covered here:

(4) "Engineering" means any professional service or creative work, the adequate performance of which requires engineering education, training, and experience as an engineer.
(a) "Engineering" shall include:
1. Consultation, investigation, evaluation, planning, certification, and design of engineering works and systems;

a. Engineering design and engineering work associated with design/build projects;
b. Engineering works and systems which involve earth materials, water or other liquids, and gases;
c. Planning the use of land, air, and waters; and
d. Performing engineering surveys and studies;​

2. The review of construction for the purpose of assuring compliance with drawings and specifications; any of which embraces this service or
work, either public or private, in connection with any utilities, structures, certain buildings, building systems, machines, equipment, processes,
work systems, or projects with which the public welfare or the safeguarding of life, health, or property is concerned, when that
professional service or work requires the application of engineering principles and data;

3. The teaching of engineering design courses in any program accredited by the Engineering Accreditation Commission of the Accreditation Board
for Engineering and Technology or any engineering program deemed equivalent by the board;

4. The negotiation or solicitation of engineering services on any project in this state, regardless of whether the persons engaged in the practice of
engineering:

a. Are residents of this state;
b. Have their principal place of business in this state; or
c. Are in responsible charge of the engineering services performed; and​

5. The services of a professional engineer who engages in the practice of land surveying incident to the practice of engineering that does not relate
to the location or determination of land boundaries.

(b) "Engineering" shall not include the professional services performed by persons who:
1. Develop or administer construction project safety programs, construction safety compliance, construction safety rules or regulations,
or related administrative regulations; or
2. Only operate or maintain machinery or equipment;

(5) "Practice of engineering" means the performance of any professional service
included in subsection (4)(a) of this section;

I generally dislike these definitions of engineering as they're so broad that sometimes just operating a calculator could be deemed "practicing engineering", I would be shocked if all of this could hold up in court. That said, it does appear that KY is specific enough in what they define practicing engineering and I would suspect that OP's former employee is indeed falling under this definition.

For OPs specific case I'd suggest that the best way to go about this would be to go after the engineer. Unless he's a part owner or officer of the company then he's violating KY 322.060. You could even gather this information easily yourself; just call up the company anonymously and ask if Engineer XYZ works there (whoever's stamp is on the drawings).

Ian Riley, PE, SE
Professional Engineer (ME, NH, MA) Structural Engineer (IL)
American Concrete Industries

https://www.facebook.com/AmericanConcrete/

 

[structuralsteelhead]

Per JAE above, some states, say CA for instance, prohibits firms from soliciting engineering work outside their discipline of practice. Not picking on ME and EE firms (or am I), soliciting 'and' performing structural engineering work 'or' construction administration with regards to structural engineering if your firm does not have Civil/Structural Engineer as an Principal and/or acting Officer of the company is against the Board's Rules. Subcontracting agreements and partnerships are sometimes kept silent in order for firms to appear to be multidiscipline when they are not. Some firms are transparent about this, some are not. The path from client to engineer can be alarmingly convoluted. Engineer beware.

Review your Board's rules, you may find something. Otherwise, let your less credentialed competitor have the less paying clients, good riddens! Keep the fat ones who respect and appreciate your services because of the quality they know they are getting from you. You'll be happier doing the work and you'll help keep all of our revenues a little more respectable in order for us to keep somewhat decent food on the table. And a smiley face,....

 

[CWB1]

Didn't someone get the book thrown at him for giving his opinion about the timing of traffic lights?

No, the board tried to hang him for repeatedly referring to himself as an engineer, which he legally is for other work under the industrial exemption. The case against him was thrown out in court and the board reprimanded bc they defined engineering in an overly broad manner as any application of math and science, which is obviously ridiculous. The judge ruled that they violated his constitutional right to free speech.

 

[kmart30]

This happens all day in the residential world....I think he learned from his slap on the wrist to not advertise engineering services. Most guys like him around here call themselves "designers" and have a stamper in the background. Some of the older ones that have been around do good work but dont have a license. How do you think the licensed architects feel about this? Probably pissed but they cant do anything about it; they either compete or chase bigger and better work.

A good starting point would be to figure out how much he is charging and his turn around time then figure out how to beat him at his own game. Unless this guys is doing work for pennies there is no reason why you cant compete if he is doing similar work. Even if he is doing it for peanuts he will get burnt out or out of business before you know it.

 

[bones206]

Sorry about the tangent re: the traffic signal guy. My point was just that the state was willing to go after one individual hard for a pretty trivial reason but apparently let this underbelly of shady pseudo-engineers exist with lax enforcement. Besides cutting into business opportunities, don’t these people also lower the value of engineering licensure in general?

 

[CWB1]

My point was just that the state was willing to go after one individual hard for a pretty trivial reason but apparently let this underbelly of shady pseudo-engineers exist with lax enforcement. Besides cutting into business opportunities, don’t these people also lower the value of engineering licensure in general?

What's shady or devaluing about anything he's doing?

From the sound of it, the competitor did design work for the OP's firm previously and his work was stamped after reviewing with a PE. From the sound of it he's doing the exact same thing now - designing projects that are then reviewed with a PE and stamped. Both designer and PE are still employed, so no loss there. Quality work can still be done, no loss there. The PE has work coming to him without any real effort on his part, value gained there. The only value lost would be that the customer's check is now supporting two companies' overhead costs and there is certainly time lost communicating between the two companies. The competitor could hire his PE sub and be on equal footing with the OP and many other engineering firms but the PE would likely make less money as an employee, which would in fact devalue the profession.

Regarding "shady," the competitor sounds like he is conducting an open, public business. The OP OTOH is trying to shut down a competitor that his employer should easily beat on cost and time efficiency on most projects, but apparently is choosing not to, he's looking for guildism to protect profit - shady.

If you'd like to get into "pseudo-engineers" look at a few corporate job descriptions, note the differences between engineers and technologists, then ask yourself which many (most?) CE/SE/MEP PEs are. Usually technologists' duties revolve around the "practical application of known engineering formulas, tools, and technology to design.....," whereas an engineer is typically responsible for the "development of new engineering tools and technology for design...."

 

[bones206]

Presumably the company he used to work for (the OP's company), has a license to perform engineering services issued by the state. It's normal for those firms to have non-licensed employees working in concert with and under the responsible charge of licensed employees. That's a far cry from one of the non-licensed employees soliciting work as an engineer (which is the title of this thread, so I assume that's what he's doing), then having someone review and stamp his designs. As SandCounter pointed out, that doesn't meet the legal definition of responsible charge. Even if he hired the PE stamper, he would have to get his business entity registered as a licensed engineering firm with the state. Otherwise, I'm pretty sure it would still not be legit to solicit engineering work.

I respect the guy for going out and making a living, but he should just play by the rules or suffer the consequences of infuriating his legitimate competitors.

Is it that much of a stretch to call someone shady who has already been issued a cease and desist order?

 

[EngineerByDay]

Bones206,
You hit the nail on the head. I would gladly turn him in, but the Board is looking for a smoking gun. They like going after the licensed personnel, not the unlicensed personnel, simply because its easier. Whenever his plan-stamper is reported, he just moves to another one. I'm just going to ask the Board to call one of his clients (design-build contractors) and ask them who they use for their engineering. They will gladly tell them they use the un-licensed person's company, simply because they see nothing wrong with hiring him. The bad news is that in a worst case, he will be fined $1,000 and could possibly go to jail for seven days. I'm afraid he considers this an acceptable risk, and always has. Thanks again.

 

[TehMightyEngineer]

I've always wondered why fines for these things are so small. I get it that someone skipping their continuing education requirements or being a licensed engineer but letting your license expire should just be a slap on the wrist. But, for people who are actually practicing engineering without a license OP's entirely right in my mind that you could actually make plenty of money to cover the fine and a few days in jail.

Ian Riley, PE, SE
Professional Engineer (ME, NH, MA) Structural Engineer (IL)
American Concrete Industries

https://www.facebook.com/AmericanConcrete/

 

[MrHershey]

Presumably the company he used to work for (the OP's company), has a license to perform engineering services issued by the state. It's normal for those firms to have non-licensed employees working in concert with and under the responsible charge of licensed employees. That's a far cry from one of the non-licensed employees soliciting work as an engineer (which is the title of this thread, so I assume that's what he's doing), then having someone review and stamp his designs. As SandCounter pointed out, that doesn't meet the legal definition of responsible charge. Even if he hired the PE stamper, he would have to get his business entity registered as a licensed engineering firm with the state. Otherwise, I'm pretty sure it would still not be legit to solicit engineering work.

That's really the main thing here.

Boils down to two questions:
[ul]
[li]Is this business performing engineering services, yes or no?[/li]
[li]Does this business have the correct permit from the licensing board to provide engineering services, yes or no?[/li]
[/ul]

If the answer to the first question is no then we're done. OP clearly thinks they are. Some seem to think they're not. Personally I think if they're just marketing themselves as a drafting/coordination service and making it clear that they're subbing out the engineering then they're probably fine. Maybe a different chain of command than normal and not the way I'd prefer things to be done, but this guy isn't practicing engineering any more than any other subcontractor who provides delegated design items and subs out the engineering.

If the answer to both is yes then we're done. Sounds like the general set-up hasn't really changed. If the licensing board has reviewed the set-up and still given the business the license, then I would presume the board is okay with it.

If the answer to the first is yes and the second is no, then there's an issue and feel free to report it to the board. If you've already reported to the board and nothing has happened then follow up. If you've already reported and they've declined to look into it or declined to penalize the firm, then it's over.

 

[bones206]

(5) "Practice of engineering" means the performance of any professional service
included in subsection (4)(a) of this section;

4.(a).4. The negotiation or solicitation of engineering services on any project in this state, regardless of whether the persons engaged in the practice of
engineering:
a. Are residents of this state;
b. Have their principal place of business in this state; or
c. Are in responsible charge of the engineering services performed; and

By this definition, the act of telling the contractor that you will provide them stamped drawings is by definition performing engineering services. If I'm interpreting the legaleese correctly...

 

[casseopeia]

I thought you were going to suggest roughing the guy up in the middle of the night.

If you are offended by the things I say, imagine the stuff I hold back.

 

[Brad805]

I guess the question I would ask is do you really want those clients? We have an interview process, and there are questions asked to get an understanding if they view the engineering as valuable, or just an annoyance to get papers filled out. If the latter, we opt not to work with them. It seems unlikely you will find the necessary print to take this up with your board, so it will come down to a client reporting him where he has made a verbal claim purporting something he is not. Unless you have proof of something unsafe, I would be inclined to wash my hands of it.

 

[awhicker84]

If a retired engineer with a valid PE license wants to make some money while in retirement and charge less for his services then I guess there's nothing you can do.

Sounds odd to me that only a PE can own an engineering firm in Kentucky (or anywhere else). I guess MBA's can't own an engineering firm in KY? Laws are weird.

 

[TehMightyEngineer]

awhicker84: A non-engineer can own the firm, the PE just has to be an officer of the company. Essentially you need to have a full-time engineer on staff, you can't just sub out the engineering work to an outside company or individual.

Ian Riley, PE, SE
Professional Engineer (ME, NH, MA) Structural Engineer (IL)
American Concrete Industries

https://www.facebook.com/AmericanConcrete/