September 01, 2014

Licensing of Control System Engineers Is Getting Tighter

Faegre Baker Daniels partner Mark Voigtmann authored the following article for the Control System Integrators Association in September 2014.

Here’s a general rule. If your company works as a controls engineer in the manufacturing or industrial space, it mostly need not worry about whether your company or the employees writing your software are professionally licensed. That’s for two reasons. First, code writers are not licensed generally (can you imagine a world in which they were — Microsoft and Google certainly would not stand for that). Second, those in the factory world are protected generally from state licensing regulations by a long-recognized loophole called the “industrial exemption.”      

Still, one worries and for good reason. It is hard to ignore that there can be a lot of engineering connected to control system integration. Also, one in my position always worries about the exceptions — not the rule. Finally, every state is different in that it has its own, separately-justified set of rules that govern professional licensing that can overrule the industrial exemption with the wave of a pen. It is for that reason that we often recommend — depending on the type of equipment or services in which you are involved — that on some level your company performs a “gut check” for those jurisdictions where it does any meaningful amount of business.

How bad could it be? Not only could your firm be slapped with a fine, it might lose its right to collect its professional fees in the state in question.

And since I last wrote about this topic, the landscape has been getting more forbidding: “Control systems” or engineering involving “control” are now specifically mentioned (and therefore regulated) in Alabama, the District of Columbia, Mississippi, Oklahoma and South Carolina. In addition, even though not calling out control systems specifically, regulations in Florida, Iowa, Kansas, Montana, Nebraska, New Mexico, North Carolina, Puerto Rico, South Dakota, Utah and West Virginia arguably have encroached upon the industrial exemption such that the factory floor can no longer be said to be a completely safe haven in those places from the professional licensing arm of the law. 

There are complexities of course. Whatever licensing is needed may not relate to individual engineers, but only to companies (which may only be required to have a single licensed engineer “of record” on staff). Also, licensing may not be applicable if your company does not really hold itself out to be an "engineering firm." What is the definition of "engineering firm"? Once again it depends on which state you are in . . . 

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