Legal Update
Feb 7, 2022
Multinational Employers—Are Your Global Employment New Year’s Resolutions Still on Track? We Have a Shortlist for Success
Studies reveal that most people fail to keep up with their New Year’s resolutions by mid-February. Year on year, we see this type of goal fatigue also happen to organizations. This year, pandemic-related burnout may be making it even harder to stay the course and achieve what you want to achieve in 2022 as a global employer.
Thankfully, it’s not too late to recalibrate. In this countdown we break down our “Resolutions Shortlist”—the top priorities global employers should tackle to make for a successful 2022 and beyond. You don’t have to tackle them all immediately, but this is as good a time as any to (re)commit to a successful annual strategy.
1. Transition to a new (hopefully post-pandemic) phase of working
Although employers in the US and some other jurisdictions are permitted to require vaccination (and in some cases, vaccination is government-mandated), in many countries government policy continues to be that employers cannot require vaccination as a condition of employment, except for sector level (e.g., care homes) or other government requirement. Employer vaccination policies may require further country-specific updates—for instance, where “fully vaccinated” status will soon require a booster shot, where employers want to exclude unvaccinated employees from certain benefits such as sick pay for quarantine or isolation, or where employers offer incentives for vaccination or booster uptake or implement vaccination requirements for new hires or business travelers.
Several data protection regulators have now issued updated guidance on collecting vaccination data and storing it. For US multinationals, it is important to keep in mind that vaccination status data is often subject to more stringent requirements for collection, processing and, often, sharing (such as the prohibition on transfer of such data outside the employee’s jurisdiction). These obligations make administering vaccination policies from the US particularly fraught with complications.
Hybrid and remote working arrangements remain hot topics of discussion with potential hires and current employees (and more than ever, both groups are candidly comparing ways in which employers support flexibility). See our recent articles on these topics here and here. Employers reintroducing “office based” work will need to revisit their position on remote work allowances, stipends, and reimbursements, keeping in mind that in some locations adjustments may require more planning, including consultation with, and agreement of, employees or employee representatives.
2. Accept that the Future of Work is here and now
Although we hear employees reminisce about the “old” office life, many have acquired a taste for unprecedented freedoms. Understandably, employees may not appreciate the complications these freedoms pose for their employers, which go well beyond having to find a consistently fast internet connection. As employers have experienced an uptick in working from anywhere in the last 2 years, including across borders and not always with the knowledge of the employer, we have found employees are often surprised and frustrated to learn this can have significant implications for tax, labor, and immigration laws.
As the world continues to open up, employers encouraging (or just not tracking) flexible working should consider carefully what limitations to place on working from “anywhere” and “at any time” in order to balance workers’ lifestyle preferences with their compliance obligations, workplace cultural expectations, and even workers’ legal rights to rest or “right to disconnect.” This can mean having to rethink once again any “work from home” and “remote” policies, time reporting, manager training, meeting scheduling, and devising clever ways to legally monitor workers (and respect their privacy) wherever they happen to be from one week to the next. Look to our Future of the World of Work webinar series for a deeper dive on many of these issues.
3. Stay on top of data protection laws and changes
In addition to California’s CPRA and several other US states considering consumer privacy legislation, more GDPR enforcement and various pan-European legislation (and the end of the grace period in which to amend previously signed Standard Contractual Clauses), data protection changes have recently gone into force or are expected to come online in China, UAE, Qatar, Kingdom of Saudi Arabia, Japan, Switzerland, and Brazil. The long-awaited Personal Data Protection Bill may finally come into effect in India, along with anticipated changes in Korea, Sri Lanka, and Thailand. This means employers should never consider privacy compliance “done” but instead continue to evolve their HR privacy compliance obligations to fit global needs, paying particular attention to information/transparency expectations, diversity and vaccine related data, and the validity of intra-group transfers, as well as transfers to various HR and benefits vendors. All-inclusive employee privacy notices alone don’t cut it—ensuring sufficient global compliance and protection of invaluable company IP means proactively considering the impact any new initiative or change to existing practice may have on the data of employees and others.
4. Get comfortable with gig economy and platform workers
The number of people simultaneously working on multiple gigs or through platform applications is growing exponentially. The European Commission published a proposed Directive at the end of 2021 geared toward improving the working protections for platform workers. (See our discussion on it here.) Once adopted, the European Member States will have two years to implement the Directive into national law. It is very likely the Directive will require reclassification of many types of platform workers. The Directive is not the only legislation of its type, so global employers should not wait to assess their relationships with all workers (including directly engaged employees, those engaged through third parties, and independent contractors) and consider whether to curtail, reclassify, or restructure in order to mitigate risks, depending on specific circumstances.
5. Embrace pay transparency trends and get the most out of DEI data
In the US and abroad, legislative efforts continue to move toward pay transparency, with disclosure requirements (in CA, CO, and NYC as examples) and gender pay gap reporting requirements (across Europe). With ethnicity pay gap reporting being mooted in the UK and other jurisdictions and candidates’ and employees’ knowledge and expectations in this arena growing, global employers would be wise to pay particular attention to the tools they have at their disposal to benchmark pay and DEI data and to assess whether they are making optimal and appropriate use of global data. We discuss DEI data collection for global workforces here.
6. Find the right work-life balance for families and carers
European Member States have until 1 August 2022 to implement the Work-Life Balance Directive into national law. With much attention on the disparate impact the pandemic has had on parents and other caregivers, now is the time to evaluate global and local parental and caregiver leave policies in order to meet the minimum requirements set out in the Directive, and also to attract and retain top talent, regardless of location. The Directive introduces at least 10 days of paternity leave and carers’ leave, and extends rights to request flexible working arrangements. Astute employers can take advantage of this opportunity to stand out from the competition in their quest for talent with policies that are attractive to current and future parents and caregivers. Some employers may want to consider career returner and return to work programs for those caregivers who have been out of the workforce for some time.
7. Put bad employer habits behind you
If your company’s plan is to enter new markets, to grow your headcount in existing ones, or even simply to implement any kind of organizational change, consider whether it is time to scrutinize your policies and procedures to make your workforce easier to manage through these transitions. This may mean it is time to:
a) Review new hire documentation for local law compliance and priority issues like protection of IP, confidential information, and restrictive covenants.
b) Consider local law compliant work policies/handbooks, including where triggered by minimum headcount thresholds. Priority areas include many already discussed above: health and safety (often mandated by local law), vaccines, data protection, use of employer systems and work tools, including laptops and mobile devices, sick leave, and parental leave.
c) Review the Code, reporting hotline, and related policies for compliance with local laws, including the recent European Whistleblowing Directive (see our article here) and data privacy laws. US compliance obligations require that your compliance program applies and is implemented across all of the company’s locations internationally. A “paper tiger” program not only fails to meet US compliance requirements, but it can lack the “teeth” needed to enforce internationally.
d) Consider whether your global sales teams have sufficient guardrails in place (including local law compliant sales compensation plans and/or rules).
To find out more about the topics on our Resolutions Shortlist for global employers, please reach out to the author Yana Komsitsky or anyone on Seyfarth’s specialist International Employment Law team.