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Philippine Government ratifies Seafarers’ Identity Documents Convention

April 25, 2012 Leave a comment

The International Labour Organisation (ILO) Convention 185, also known as the Seafarers’ Identity Documents Convention, was duly approved and ratified by President Benigno Aquino III on October 11 2011. The ratification was duly approved by the Philippine Senate and is now being transmitted to the ILO’s headquarters in Geneva for submission.

The convention provides that any seafarer who holds a valid seafarer’s identity document shall be admitted to enter the territory where the convention is in force when entry is requested for:

  • temporary shore leave;
  • joining his or her ship or transferring to another ship;
  • passing in transit to join his or her ship in another country;
  • repatriation; or
  • any other purpose approved by the authorities of the member state concerned.

According to the Joint Manning Group, the shipping industry has welcomed this new development, as the convention facilitates the activities of Filipino seafarers. In particular, it makes it easier for them to take shore leave without the required visa and without any unnecessary inspection and interrogation as to their identity.

For further information on this topic please contact Ruben T Del Rosario at Del Rosario & Del Rosario law Offices by telephone (+63 2 810 1791), fax (+63 2 817 1740) or email (ruben.delrosario@delrosariolaw.com).

EU Data Protection Proposals: Outsourcing and Employee Data Issues

February 17, 2012 Leave a comment

The following article by  Matthew Howse, Partner, and Celia Kendrick, Associate, at Morgan Lewis should serve as a great primer for US as well as other multinational organizations that deal with human resource data of EU citizens. The EU’s proposed new revisions to data privacy could have broad ramifications for the unwary.

Outsourcing arrangements often require the transfer of employees’ personal data from the customer to the supplier or vice versa.  For example, an outsourcing of payroll functions will involve the transfer of employee data.

Particular issues arise if the data is to be transferred outside of the EU.  In addition, notwithstanding that most data protection legislation within the EU derives from the EU Data Protection Directive, there are important differences between countries on how personal data can be processed.  The UK rules are currently contained in the Data Protection Act 1998.

In January 2012, the European Commission published its proposal for a new General Data Protection Regulation.  The extensive proposals would overhaul this area of law and significantly increase data protection across Europe.

The key proposals are:

Harmonization: A single set of rules will apply across Europe.

Scope extends beyond Europe: The new rules will apply to EU businesses and businesses based outside the EU that process European citizens’ personal data for the sale of goods or services or the monitoring of behavior.

Fines: Penalties for non-compliance will be significant, with businesses facing proposed fines of up to €1 million or up to 2% of their annual worldwide turnover (depending on whether the organization is an ‘enterprise’).

Explicit consent: The new definition of “consent” will include a requirement that individuals’ consent must be explicitly obtained; it cannot be assumed.

Notification requirements: Organizations will be required to notify their supervisory authority of a security breach without undue delay, meaning within 24 hours if that is feasible.  If not, the notification must be accompanied by a reasoned justification.

Right to be forgotten: Individuals will be able to ask to be forgotten and have their data deleted unless there is a legitimate ground for keeping it.

Data protection officers: Organizations with over 250 employees will be required to have a designated data protection officer who will have specific duties in relation to monitoring and advising the organization.

These changes are probably long overdue – the current law was drafted when recent technological advances could not have been contemplated.  However, preparing for the changes and ensuring compliance will place a large administrative and financial burden on businesses with a European presence, including businesses involved in outsourcing.

The next step is for the proposed Regulation to be considered by the European Parliament and Council.  It is expected there will be widespread debate on the proposals, and that the Regulation will be amended.  Once the Regulation is approved, it is likely to be a further two years before it comes into force.

If the current drafting of the Regulation is approved, there will be a significant change in data protection obligations for both customers and suppliers.  Under the current law, only data controllers – organizations that control the purposes and manner for which personal data is processed – are subject to the obligations and restrictions on personal data.  Most suppliers are data processors as they process personal data on behalf of the customer (the data controllers).  However, the proposal is to impose restrictions and obligations directly on data processors (i.e. suppliers) for the first time.

Currently, it is important for all parties to establish who the data controller is and for the data controller to impose contractual obligations on the other party to ensure compliance with data protection legislation.  It is also key to ensure that, if personal data will be moved outside of the EU, this is done in compliance with the strict restrictions on exporting data.  Arguably, by extending the scope of data protection legislation to cover data processors and organizations based outside the EU which process EU citizens’ data, these considerations will become less significant for EU-based data controllers (i.e. customers).  However, the effect on data processors and international organizations will be much more significant.  The more stringent rules will place a tougher administrative burden on suppliers, which could lead to an increase in the overall cost of outsourcing.

Organizations that are about to enter into new outsourcing arrangements should be aware that their data protection obligations may change during the course of the arrangements.  Contractual provisions should be drafted accordingly, for example to make data protection provisions subject to amendment to comply with legislative changes.

The key message for customers and suppliers is: watch this space.  It will be some time before the measures are implemented, but the scope and effect of data protection legislation is likely to change significantly.

As published by © 2012 sourcingfocus.com

Global background screening, an integral part of risk management

January 19, 2012 Leave a comment

With increasing connectivity, there is an advent of a truly global workforce, multinational operations has led to an exponential increase in the risks associated with candidate recruiting and contract and or contingent workforce.

Human capital is increasingly being acknowledged as the most important investment for any company. Finding the right talent in the right job at the right time is an enormous challenge that global HR teams are facing in today’s current hiring scenario.

In all of this, in the more recent times, individuals from corporations involved in various crimes as well as increased legal scrutiny related to anti corruption has led to increased realization about the value for background screening all employees, contractors, and vendors at all levels.

Reported incidences of corruption, doing business with vendors listed on sanction and debarred parties lists in the petroleum  sector, unauthorized access to sensitive customer information in financial services sector, instances of staff in educational institutions involved in exploitation cases — all have led to growing awareness of the need for background screening of employees as well as vendor / contract staff.

The reality is that an organization’s reputation is at stake should they hire someone or do business with an entity that has a questionable background. Brand equity and value can be adversely impacted if it is known that an organization didn’t exercise a reasonable level of due diligence before recruiting a certain individual or decided to do business with a trading partner who had a questionable background. Thus, lack of background screening or even not performing best practice type checks depending on the circumstance on current or potential employees and or trading partners is something that could come back to haunt any organization — through reduced business, inability to retain better employees and adverse impact on its public image.

If that wasn’t enough, not only can it be rather embarrassing for an organization that does not excise due care in vetting their employees, contract staff or trading partners such organizations can also be exposed to enforcement action by government authorities for not conducting what may be considered a reasonable level of due diligence or have not applied “due care” as may be required by new and existing anti-corruption laws such as the U.S. Foreign Corrupt Practices Act (FCPA), Sarbanes Oxley, Patriot Act, and US. Federal Sentencing Guidelines for Organizations (FSGO) and many other similar industry and or country specific laws like the UK’s Bribery Act.

The FSGO requires organizational implementation of compliance standards and procedures that are “reasonably capable” of reducing the prospect of criminal conduct by employees, contractors, and business partners. In fact, according to FSGO, due care must be made in avoiding passing on to individuals whom an organization knew, or should have known, had a propensity to engage in illegal activities.

What is considered adequate due diligence or due care according to many of the above mentioned legal provisions is beyond the scope of this article and will be discussed in a later article.

Global Background Screening Industry Overview

Although there has always been some demand for background checks abroad, the initial driving force for international or global background screening was first introduced about ten years ago. This was triggered by the post 9/11 attacks. With a number of Fortune 1000 companies going global — either through setting up their own offices or outsourced work abroad, it was expected that their overseas based entities (mainly IT and BPO companies) followed processes that were an integral part to their recruitment policies. (Incidentally, recent studies show more than 90 per cent of Fortune 500 companies have a formal policy of background screening their employees). This led to background screening of their employees as well as their outsourced counterparts.

The concept of global background screening is no longer limited to just IT or the financial services segments. A growing number of organizations in the manufacturing, maritime, defense, pharmaceutical, petroleum, hospitality, health care, retail, travel, telecom, educational institutions and entertainment industries are adopting international background screening practices.

Today’s multinational companies (MNC) face a growing challenge in managing the collection, use, processing and transfer of mass amounts of personally identifiable information globally, especially in light of the myriad of data protection (privacy) laws that exist today. Effective management of global talent management, data privacy, and security involves a multi-disciplinary approach involving legislation, technology, and business processes in order to fully understand and address data protection and personal privacy issues on a global basis. It also requires recognition that effective management is a process that must include solutions for responding to constant changes in both internal and external factors effecting human resource data use especially when it involves screening candidates around the world.

The actual overseas background screening process involves carrying out various different types of checks based on a number of factors such as type of hire (entry, mid, professional, executive), regulated position, level of risk the individual position poses to the organization, and finally, the country at hand to name a few.  Any misrepresentation in the below listed checks should be reported as a discrepancy. The discrepancy rate is the percentage of misrepresentations/fraudulent/adverse information that a comprehensive background screening procedure should uncover during the verification process.

  • Identity check – confirms candidate is who they say they are
  • Right to work check – confirms candidate is authorized to work in a given country
  • Address verification – confirms candidate’s current residency
  • Education – confirms academic credentials
  • Employment – confirms claimed work history
  • Reference check – confirms professional reputation
  • Professional credential verification – confirms professional certifications
  • Criminal records history – determine if candidate has a propensity to engage in illegal activities
  • Regulatory and Compliance / Sanctions Search – determine if candidate has been sanctioned by relevant regulatory authorities, has been the subject of other enforcement actions, or identified as a possible politically exposed person
  • Adverse media – news articles that contain derogatory information the candidate
  • Conflict of interest – evaluate if candidate may be involved in multiple interests
  • Drug Testing – determination if candidate has a propensity to abuse illicit drugs
  • Trading Partner / Vendor Screening – determine if vendor is legitimate and of good standing

It is critically important that ALL checks are initiated only after an authorization in writing by the concerned candidate is obtained.

A “credible” international background screening company will ensure that the process goes only through the legal / legitimate route of obtaining records or verifications. This may imply relatively later verification compared to some agencies who provide “quick,” “easy,” “cheap” criminal record results from every country on the planet but through processes which may not be able to stand the scrutiny of law! This was most recently highlighted in a case involving a company who purported to provide court record checks from a country where it is well know that court records are not the best practice source for employment purposes. The end result was a series of missed criminal records that should have been reported, the loss of a screening company’s entire clientele, and finally an ongoing litigation involving suspected fraud and misrepresentation.

While more and more screening companies offer international or global service, the best way of managing background checks at least internationally is to ensure that international background checks are done by organizations that actually specialize in this area. This assumes the provider is able to demonstrate they have more than just a passing knowledge of available products. In fact specialized providers should be able to demonstrate a thorough understanding of the local data sources, a clear understanding of the specific geographic and search requirements, the legal environment (laws related to data/record access rights, personal privacy, relevant employment and human rights laws), and who are able to offer specific answers to questions related to best practice screening in the given country. A specialized global background screening organization would not ordinarily compromise its reputation by not following local compliance requirements.

Way forward
Data shows that individuals with a questionable background tend to join organizations that do not conduct background screening of its employees or contract/vendor staff.

Hence, when these organizations do start conducting background screening, they find many discrepancies (number of employees who have misrepresented facts on their resumes or have a criminal background) and/or go through huge attrition (as employees who have misrepresented facts or have negative background prefer to leave than be found out) when they announce background screening.

This is validation of how background screening becomes a deterrent against employees or prospective employees or even vendors misrepresenting facts on their resumes or employment applications. Thus, background screening proves to be a good insurance against risk to reputation related to bad hires as well as trading partners!

The international or global background screening industry is still in its emerging phase. There are many organizations/institutions overseas who, as a policy, do not share information with third parties for verification purposes. For some organizations and institutions which do not mind sharing information, it can be a longer process as databases are manually maintained and verification process involves going through very old data maintained physically.

Employment checks that can be conducted at the click of a button in the US have to be conducted through phone calls, faxes, or emails or site visits in India.

Moreover, many organizations abroad do not maintain databases or records for temporary employees, which lead to unavailability of such crucial information.

Criminal background information that is available through various online databases and court records in the US are not comparable with what is available in other geographies. In many countries, such information needs to be sought at the central repository level and even locally in the concerned jurisdictions.

Collaborative online database solutions involving all parties concerned — the candidate, the recruiter, the verifier, the verifying authorities, etc. — will help in developing a ‘pre-qualified and pre-checked’ ready-to-hire talent pool — which is the need of the hour in the present economic scenario.

Aletheia Consulting Group provides multinational companies best in class International Background Check Provider Vendor Evaluation and Audits. If you would like to learn more about our Services for Multinational Employers please feel free to contact us at terry.corley@AletheiaConsultingGroup.co.

Littler Unveils Eight Challenges for Global Employers: Dangerous Workplaces and Social Media Among Greatest Threats

January 5, 2012 Leave a comment

PRWEB.COM Newswire

San Francisco, CA (PRWEB) January 04, 2012

Littler Mendelson, P.C. (Littler), the nation’s largest employment and labor law firm representing management, has pinpointed eight major global employment trends facing international companies for 2012 and beyond.

“From dangerous workplaces to social media to whistleblowing, the global employment trends we are seeing are a clear reflection of the social and economic times in which we are living,” said Garry Mathiason, chairman of the board at Littler. “The change in social policy based on a transformed global economy is driving an evolution in the work we do for clients. These trends are an important part of the future of global employment law.”

The eight major and emerging trends, as well as a brief video of Garry Mathiason discussing these trends at Littler’s Global Employer Institute in Washington, D.C., are below.

1. Dangerous Workplaces – Employees are accepting assignments that take them to unsafe places in the world. These assignments are often shorter term, but increasing in frequency. Compliance recommendations include recognizing by country and assignment the continuum of threats, and establishing centralized policies and multi-disciplinary teams to respond.

2. Social Media and Global Privacy – The line between one’s work life and private life has been permanently blurred by technology. Laws permitting background checks using social media are changing the landscape of employment law and differ substantially between countries. Employers need vetted global privacy policies that also recognize the inevitability that personal smart phones and tablets will increasingly be used in business. Employers also need to consider how they will retrieve business information after an employee leaves as this information can be housed in a social media channel. For example, decide whether LinkedIn profiles are the property of an individual employee’s company.

3. Whistleblowing and Overcoming Corruption are a Business Priority – Worldwide governments are providing incentives for whistleblowers and promoting a business culture that embraces and protects whistleblowers. Whistleblowers have emerged as ethical heroes and this new culture is embodied in the Foreign Corrupt Practices Act, the U.K. Bribery Act and a recent push in Europe to strengthen whistleblower protections.

4. The New Face of Discrimination – New trends in discrimination include migrant and social origin discrimination globally. Employers also need to be aware of discrimination liability related to economic adversity and discrimination against the unemployed. Within the U.S., states are starting to adopt statutes protective of the unemployed and the EEOC has flagged the potential link between current civil rights laws and the disparate impact of unemployment discrimination. Outside of the U.S., unemployment discrimination may be considered a form of social origin discrimination.

5. Third Party Funding of Litigation – Whistleblowers are proving to be a new market in which hedge funds are investing. Employers should monitor institutional funding entitles for divisions supporting litigation funding—and express opinions. Employers should also consider this developing trend when assessing ROI on compliance programs.

6. Global Mobility – Related to the arbitration trend below, employment contracts are critical to global mobility. A confluence of demographic trends, including the fact that some countries have as high as 70 percent expatriates or migrants in their workforce, and the increasing popularity of short-term assignments require employers to consider a number of issues. Those issues could range from tax issues in advance of an overseas assignment to bringing an employee to his other home country before termination.

7. Rise of the Contingent Workforce Worldwide – This trend is an economic certainty and presents multiple employment law compliance issues ranging from joint employer liability to compliance with globally different wage and benefit statutes. Employers should identify their contingent workers including independent contractors, who are under classification scrutiny by revenue-hungry taxing authorities worldwide. Expanding compliance systems to encompass the growing contingent workforce is essential.

8. Global Arbitration and the Rise of Soft Law – Employment arbitration agreements have been a key topic before the U.S. Supreme Court in 2010 and 2011. International enforcement of arbitration agreements is on the rise but legal requirements differ. Increasingly, HR standards are being harmonized worldwide through framework agreements and conventions. This “soft law” approach to regulations represents multiple employment law challenges at the same time it promotes greater uniformity of working conditions and global management.

Additional global employment trends addressed at the Institute included panels on the globalization of workplace bullying laws, executive compensation regulations in the European Union versus the U.S., the increasing role of employment and labor law in Africa and emerging employment law and issues in China. Attorneys from Littler and TransAsia, a Littler-affiliated law firm located in China, participated with a distinguished panel of speakers including Chinese Government Official, Zhang Shicheng, Deputy Director-General, Legislative Committee, PRC’s National People’s Congress.

About Littler Mendelson

With over 850 attorneys and 55 offices, Littler Mendelson is the largest U.S.-based law firm exclusively devoted to representing management in employment and labor law matters. As the only U.S. member of the Ius Laboris global alliance, Littler has extensive resources to address the needs of multi-national clients, from navigating international employment laws and labor relations issues to applying corporate policies worldwide. Established in 1942, the firm has litigated, mediated and negotiated some of the most influential employment law cases and labor contracts on record. For more information, visit littler.com.

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Read the full story at http://www.prweb.com/releases/littler/employment-trends/prweb9076489.htm

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