To keep their programs compliant, CW managers must stay on top of legal developments, and those in global programs have much more ground to cover. In 2018, numerous legal developments are expected to affect the workforce environment globally. Here are a few.
Data Privacy. The way companies treat their user and customer data is going to change forever with the May deadline for Europe’s General Data Protection Regulation just around the corner. The GDPR “will set the gold standard in allowing individuals within the European Union to control their personal data,” Coombe said. The GDPR’s reach extends beyond companies physically present within the EU to those that offer goods or services to customers within the EU, those that monitor the behavior of EU citizens. And a breach could be could be devastating, with a maximum penalty of €20 million or 4% the company’s worldwide revenue. Coombe’s recent report on the GDPR is available to CWS Council and SIA corporate members.
#MeToo. Late last year saw a groundswell of sexual harassment allegations lodged against individuals in positions of power — from Hollywood to Washington DC. Though quieter, the movement continues, and may result in an increased willingness on the part of victims in the workplace to come forward. Such allegations present a number of challenges for employers, from a legal and practical perspective, when the victim or harasser is a contingent worker and a second employer is involved. Is your program prepared to handle such claims? Be sure you know who is responsible for investigating lies and what actions should be taken. A quick response time is of the essence as you don’t want to ignore a complainant but at the same time you need to make sure that the complaint is being investigated thoroughly. Because workplace harassment is a form of discrimination, anti-discrimination laws and the Equal Employment Opportunity Commission’s policies are applicable. Both clients and their staffing providers share responsibilities towards these workers.
Background Checks. When it comes to background checks in the US, what’s permissible to look into — and when — as part of the application process varies by location. Even within states, laws may differ, as cities and counties may have their own laws on the matter. When it comes to criminal histories, the intent is to ensure candidates are not summarily dismissed before they are judged based on their qualifications, says SIA legal analyst Fiona Coombe, CCWP. But there are other queries companies need to be careful about asking as well, such as salary history. Employers must comply with the regulations under the Fair Credit Reporting Act as well as anti-discrimination laws when using background checks during the hiring process.
Co-employment. Joint liability and co-employment continue to be top of mind with program managers as well, and failure to understand the intricacies of related law could land a program in rough waters. It is a concern that also reaches beyond the US borders, as many international jurisdictions impose joint liability on the users of contingent workers should their staffing supplier be noncompliant. The law goes further in some jurisdictions, providing that the worker is deemed to be the employee of the hirer, in place of the staffing supplier, Coombe notes. In the United States, employers that think they are immune from liability for claims by temps are ignoring today’s reality. In fact, Eric H. Rumbaugh, partner with law firm employment law firm Michael Best and Friedrich LLP and a Certified Contingent Workforce Professional program class instructor, says companies should err on the side of caution and assume that a joint employer relationship exists with respect to assuring compliance for temporary staff.
Handling electronic resources. Aside from data laws that serve to protect the individual, programs also must be protective of their intellectual property, which can be trickier when dealing with the contingent workforce. From email communications to systems access to how contingents represent the buyer organization when interacting with its external customers, there is much at stake. So be sure to brush up on your program policies, and evaluate your contingent pool periodically to ensure you know who has access to what and who is speaking with whom. A comprehensive e-communications policy, basic protocols and ongoing staff training on acceptable e-behavior go a long way toward protecting your company’s intellectual property or from liability for willful or negligent activity.
Stay informed, stay compliant. Contingent workforce program manager must be aware of the legal challenges facing their organizations. While turning to competent counsel is highly recommended, program managers may also turn to resources like SIA research to keep abreast of the overall landscape— including such reports as Legal Calendar 2018: Americas, Legal Calendar 2018: EMEA and Legal Calendar 2018: Asia Pacific.