The Australian Government has launched an online register that publishes companies’ statements on their compliance with the country’s Federal Modern Slavery Act of 2018. The website, which is searchable and available to the public, marks the first government-run website tracking companies’ compliance with efforts to eradicate modern slavery. Unlike comparable legislation passed recently in other jurisdictions, including the U.K. Modern Slavery Act of 2015, Australia’s Act makes reporting mandatory within six months of a company’s fiscal year-end.… More
Category Archives: Compliance
The COVID-19 pandemic is one of the most significant global public health crises since the Influenza Pandemic of 1918-20. The spread of the Coronavirus through every continent and major metropolis has led to unprecedented policy responses from governments both large and small. As a result, the human rights community is more closely scrutinizing the impact of these responses, while many company operations are more likely to overlap with the pandemic and evolving government policy in some way.… More
Pioneering Dutch Law Raises Global Standards for Eliminating Child Labor in Supply Chains – Understanding the Dimensions of Compliance
The Dutch Senate recently adopted the Child Labour Due Diligence Act, a new measure with far reaching implications for the sourcing, manufacturing, and consumption of products that contain inputs from the bodies of child laborers.
The new law is the product of protracted negotiations that have taken place over several years in the Dutch Parliament. The Dutch House of Representatives approved the legislation in February 2017 with 82 of the chamber’s 150 Members of Parliament in favor. … More
The 2018 Corporate Human Rights Benchmark: Some Successes but Ongoing Challenges in Company Efforts to Advance Human Rights
On November 12, The Corporate Human Rights Benchmark (CHRB) released the results of its 2018 Corporate Human Rights Benchmark. The 2018 Corporate Human Rights Benchmark assesses over 100 of the largest publicly traded multinational companies in the world on a set of key human rights indicators, including governance policies, remedies and grievance mechanisms, responding to serious allegations, due diligence, and transparency.
Established in 2013,… More
It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.
This week’s post includes: new guidance on compliance with North Korea-related sanctions laws; the release of the first annual report by the parties to the Dutch Banking Sector Agreement on International Responsible Business Conduct; and a new blog series on the “zero draft” of the proposed Treaty on Business and Human Rights.… More
The Intersection of Trademarks, Advertising and Corporate Social Responsibility
Protecting the value of your corporate brand is a critical mission. As companies are increasingly asked to make disclosures regarding their efforts to address social and environmental risks, these disclosures create both opportunities and challenges for those entrusted with protecting a company’s intangible assets.
In this webinar, we explore the interrelationship between trademarks, false advertising and emerging compliance requirements in the field of corporate social responsibility (CSR).… More
On December 21, 2017, the Trump Administration released a list of foreign nationals it has identified to be sanctioned in accordance with the Global Magnitsky Human Rights Accountability Act of 2016. In December 2016, we issued a client alert providing an overview of the legislation as it was being passed by Congress.
Based on the Sergei Magnitsky Rule of Law Accountability Act of 2012 – which authorized imposition of sanctions on Russian nationals who grossly violate human rights or engage in massive corruption – the Global Magnitsky Act greatly expands the aperture of U.S.… More
New FCPA Corporate Enforcement Policy Incentivizes Corporate Voluntary Self-Disclosure and Cooperation
Under the new FCPA Corporate Enforcement Policy recently released by the Department of Justice (“DOJ”), when a company has voluntarily self-disclosed misconduct, fully cooperated in the government’s ensuing investigation, and appropriately remediated the situation and made restitution or otherwise disgorged all illicit profits, there is a now an express presumption – absent certain identified aggravating factors – that DOJ will affirmatively decline to prosecute the company.
This new Policy is an evolutionary step forward in enforcement – not a radical change.… More
In Washington, D.C., the news this week focused on President Trump’s decision to designate (or redesignate) North Korea as a state sponsor of terrorism. For companies importing goods into the United States, developments this past August are likely to have more immediate impact.
On August 2, the United States enacted amendments to the North Korea Sanctions and Policy Enhancement Act of 2016. The amendments create a presumption that goods made by North Korean citizens or nationals,… More
It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.
This week’s post includes: a decision by the Ontario Superior Court of Justice addressing a corporation’s “duty of care” with regard to the employees of its suppliers; new IBA guidance for lawyers on integrating business and human rights considerations into their advice to clients; and a report evaluating corporate conflict minerals filings for calendar year 2016.… More
It is clear that Michael Piwowar, Acting Chairman of the Securities Exchange Commission (“SEC”) is not a fan of the conflict minerals rule. Earlier this month, the Acting Chairman and the Division of Corporation Finance released two statements regarding rule, both of which clearly state that the regulation will not be an enforcement priority.
By way of background, the statements were published after long-running litigation regarding the conflict minerals rule finally reached a formal conclusion.… More
It’s Friday and time for another overview of developments in the field of business and human rights that we’ve been monitoring.
This week’s post includes: new reports on the U.S. National Action Plan on Responsible Business Conduct, corporate disclosures pursuant to the California Transparency in Supply Chains Act, and shareholder proposals on social and environmental issues; the second discussion paper published by the Thun Group of Banks;… More
This week’s post includes: a federal court decision holding that U.S.-based companies may be obligated to turn over customer data stored outside the United States; an amicus brief opposing President Trump’s Executive Order establishing an entry ban on individual from seven Muslim-majority countries; and new guidance from the OECD with regard to due diligence in apparel and footwear supply chains.… More
On November 22, the Presidency of the European Council and the European Parliament announced agreement on the text of a new conflict minerals regulation. The agreement is based on the “political understanding” that was previously announced in June.
In order to integrate concrete CSR commitments into corporate compliance programs, a company must establish how each commitment translates into performance requirements for the relevant business units and departments. The nature of these requirements may differ considerably depending on a company’s industry and operating context,… More
This week’s post includes: the first annual report from the U.K. Anti-Slavery Commissioner; a new benchmarking report from Know the Chain focused on food and beverage companies; and the results of a survey on corporate human rights due diligence efforts.
- On October 12,…
CSR places concrete performance goals in an aspirational context: it can infuse corporate compliance requirements with a level of intrinsic motivation whereby company employees share a collective sense that the company is trying to improve its performance and act in a responsible manner.… More
Corporate Social Responsibility and Compliance: Spotting Trends and Preparing for Future Requirements
Just as integrating CSR and compliance can strengthen a company’s capacity to improve its environmental, social, and governance performance, so can CSR strengthen a company’s overall compliance efforts.
In the context of CSR,… More
This week’s post includes: the GAO’s latest report on the conflict minerals rule; a civil society report on the SEC’s efforts to modernize financial disclosure requirements; and an independent impact assessment of the Better Work Programme.
- At the end of August, the U.S.…
Integrating CSR into the framework of a company’s overall compliance program may help engage executive-level managers and the board of directors as allies in ensuring that CSR commitments are supported through the allocation of sufficient resources and management attention.… More
In weighing the costs and benefits of considering the integration of a company’s CSR commitments into existing compliance programs, it is important to recognize that this integration may strengthen the company’s capacity in both areas.… More
For some companies, integrating CSR commitments into the company’s overall compliance program may represent a significant shift. Corporate managers may view CSR as a set of programmatic commitments that are removed from the core business strategies of the company and there may be internal reluctance to integrate the relevant commitments into the company’s compliance systems.… More
CSR is dynamic: it is responsive to standards, expectations, and contexts that are ever-shifting. To be effective, CSR requires a comprehensive approach to both standard-setting and engagement with internal and external stakeholders.… More
Over the last 20 years, many companies have invested considerable time and resources in developing comprehensive compliance standards and procedures. At a minimum, compliance programs are intended to prevent and detect violations of the law that may lead to civil or criminal liability.… More
New legislative requirements and stakeholder concerns have driven many companies to implement systems to identify address the potential human rights impacts of their operations. Companies increasingly realize the responsible management of human rights impacts helps mitigate legal, operational, and reputational risks.
That said, as companies begin to assess human rights impacts, they need to avoid the trap of treating these assessments as box-checking exercises. A large volume of information can be gathered through human rights due diligence,… More
Corporate social responsibility (“CSR”) is an important component of overall enterprise risk management for many companies. That said, too often, corporate implementation of CSR commitments is reliant upon diverse functions and systems that may not be all that well coordinated with one another and may utilize a range of different oversight and accountability mechanisms.
Too often, assurance of corporate adherence to voluntary standards may not be well documented,… More
FTC Announces Children’s Online Privacy Protection Settlements Based on Collection of Persistent Identifiers
The Children’s Online Privacy Protection Rule (“COPPA Rule”) requires website and online service operators to give notice to parents and obtain verifiable parental consent before collecting children’s “personal information” online. 16 CFR §§ 312.4, 312.5. The definition of “personal information” encompasses some obvious pieces of data – name and address,… More
This week’s post includes: Apple’s refusal to comply with a federal court order; a new report highlighting the most pressing business and human rights challenges facing companies today; and an evaluation of corporate compliance with the California Transparency in Supply Chains Act.
- Apple made headlines this week when it announced that it would not comply with a federal court order requiring the company to assist the FBI in unlocking the iPhone of one of the San Bernardino shooters.…
Companies are increasingly being required to disclose how they assess and respond to the risks of human trafficking in their product supply chains. Statutes like the California Transparency in Supply Chains Act and the U.K. Modern Slavery Act require such disclosures. In addition, certain U.S. federal contractors are now required to develop detailed compliance plans to address the risks of trafficking associated with the good and services they provide to the U.S.… More
This week’s post includes: recent developments with regard to a major Alien Tort Statute case; the announcement of a pilot effort to benchmark corporate human rights performance; and a major new report demonstrating the potential links between anti-corruption compliance programs and effort to eradicate labor trafficking in corporate supply chains.… More
Attorneys in Foley Hoag’s Corporate Social Responsibility (“CSR”) practice and the U.N. Environment Programme Finance Initiative (“UNEP FI”) recently collaborated on a report analyzing the implications of the U.N. Guiding Principles on Business and Human Rights for the banking sector. A copy of the report is available here.
In addition to assessing the implications of the U.N. Guiding Principles, the report evaluates existing national and international human rights laws and the extent to which these existing laws may create potential liabilities for banks and/or their officers.… More
New guidance from the U.S. Department of Labor (“DOL”) clarifies the role of environmental, social and governance issues (referred to as “ESG factors”) in investment decisions by ERISA fiduciaries. ERISA Interpretive Bulletin 2015-01 recognizes that ESG factors,… More
The transparency provisions of the U.K. Modern Slavery Act went into effect on October 29. At the same time, the U.K. Government has released guidance for companies seeking to comply with the Act.
As previously discussed, the transparency provisions of the Act are applicable to companies that do any part of their business in the United Kingdom if they have annual gross worldwide revenues of £36 million (approximately $56 million) or more each year.… More
Companies face a range of new requirements and expectations calling for enhanced transparency regarding human rights-related risks in connection with their operations. Responsible compliance with both mandatory requirements and voluntary standards requires a coordinated internal approach that seeks to address the concerns of key stakeholders while mitigating potential legal risks.
Examples of new transparency requirements include:
The European Court of Justice has issued a decision (ECJ 6 October 2015 Case C-362/14, Maximillian Schrems v. Data Protection Commissioner) that invalidates the so-called US-EU “Safe Harbor” system.… More
This post, written by Martha Coakley and John Hurst, originally ran as an op-ed in the September 25, 2015 edition of The Boston Globe.
Hardly a week goes by without a news report of a new cyberattack. As any consumer affected by fraud knows, the harm is real. The impact on businesses, government,… More
This week’s post includes a number of recent reports on issues ranging from conflict minerals to children’s rights. It also notes the release of the Sustainable Development Goals and the convening of Climate Week NYC.… More
There continue to be regular developments in the business and human rights field that warrant attention from both companies and their stakeholders. New legislation and regulation, shifting policy positions, and developments in ongoing litigation…there is always a lot to discuss.
To conclude this week, we have put together a rundown of five recent developments that we’ve been watching closely:
- On September 2,…
Companies that do business in the United Kingdom should assess their exposure to the U.K. Modern Slavery Act, which goes into effect this October. The transparency provisions of the Act are applicable to companies that do any part of their business in the United Kingdom if they have annual gross worldwide revenues of £36 million (approximately $56 million) or more each year.
The transparency provisions are applicable to all commercial organizations, … More
In late July, Representative Carolyn Maloney (D-NY) introduced H.R. 3226, the Business Supply Chain Transparency on Trafficking and Slavery Act of 2015. The bill, if passed, would require companies to file annual reports with the Securities and Exchange Commission (“SEC”) disclosing their efforts to identify and address specific human rights risks in their supply chains. Senator Richard Blumenthal (D-CT) is expected to introduce a companion bill in the Senate.… More
It has been nearly a month since the deadline for companies in the United States to file their second annual conflict minerals reports with the Securities and Exchange Commission. As companies and their stakeholders assess the strength of their compliance efforts and public disclosures, many are also watching developments in Europe with regard to due diligence on conflict minerals.
The State of California has recently stepped up enforcement of the California Transparency in Supply Chains Act, which went into effect on January 1, 2012. The California Department of Justice has also issued new guidance on compliance with the legislation.
In April 2015, the Department of Justice sent out letters to certain retailers and manufacturers regarding compliance with the transparency legislation. The letters requested the companies to provide,… More
Civilian application of drone technology has increased dramatically in recent years. The burgeoning civilian opportunities are a potential boon for investors, who view this emerging market as one that will expand long into the future, notwithstanding current and pending regulation of the industry. VCs are eager to get in on a piece of the action.
Notably, drones have historically been used primarily by the military,… More
December 18 is International Migrants Day. Companies in a wide variety of industry sectors must address the human rights-related risks specific to employing migrant workers. These workers are especially vulnerable to human rights abuses, including poor working conditions, discriminatory treatment, physical abuse, and forced labor.
In the coming weeks, the U.S. federal government is expected to release amendments to the Federal Acquisition Regulation (“FAR”) that are intended to strengthen existing prohibitions against human trafficking by federal contractors.
The draft FAR amendments were first released in September 2013. The final amendments, once released, will impact all federal contracts, with heightened requirements for contracts performed outside the United States that exceed $500,000 in value.… More
On July 31, President Obama issued an Executive Order requiring federal contractors to disclose past labor violations. The order applies to new contracts for goods and services, including construction, valued at more than $500,000.
Contractors subject to the new order must disclose any “administrative merits determination, arbitral award or decision, or civil judgment, as defined in guidance issued by the Department of Labor”… More
Human Rights Watch‘s recent report, Tobacco’s Hidden Children – Hazardous Child Labor in United States Tobacco Farming, seeks to draw attention to the presence of child labor on American tobacco farms and to the significant health and safety risks faced by young workers, including widespread acute nicotine poisoning. More generally, the report highlights key challenges for those concerned about human rights and corporate supply chains.… More
On April 14, the D.C. Circuit Court of Appeals issued an opinion in National Association of Manufacturers v. SEC, a case that sought to challenge the conflict minerals rule released by the Securities and Exchange Commission (“SEC”) in August 2012.
The Court largely rejected the plaintiffs’ challenges, holding that the SEC did not act arbitrarily or capriciously in adopting the due diligence and disclosure requirements of the rule and in deciding not to include a de minimis exception.… More
Corporate social responsibility (“CSR”) may have its roots in voluntary efforts by businesses to address their broader impacts on society, but the trend towards CSR becoming mandatory advanced significantly this week under a deal that will soon require all large European companies to begin issuing annual social and environmental performance reports.
On February 26, the European Council and the European Commission reached an agreement that all but guarantees that the forthcoming European directive on corporate social responsibility will require all publicly traded companies with more than 500 employees to report their performance on a number of non-financial metrics every year.… More
In November, Gwen Jaramillo and I published a piece in Practical Law that looked at trends relevant to CSR. The piece covered a range of topics, including new legislative and regulatory requirements, the role of the board of directors, and key concerns for corporate general counsel.
In noting the key role of the board in overseeing a company’s approach to CSR,… More
CSR serves to strengthen a company’s capacity to listen to, and communicate with, a range of stakeholders, including employees, customers, investors, legislators, and the communities impacted by corporate activities.
These stakeholders, in their dialogues with companies, often push companies to go “beyond compliance” with existing legal and regulatory standards, especially with regard to efforts to manage the social and environmental impacts of their operations. Even as these requests seek voluntary commitments,… More
On July 23, the District Court for the District of Columbia rejected a challenge to the conflict minerals rule adopted by the Securities and Exchange Commission in August 2012 and published in September 2012. Plaintiffs seeking a review of the rule included the National Association of Manufacturers, the Chamber of Commerce, and the Business Roundtable.
Plaintiffs had challenged the rule under the Administrative Procedure Act (“APA”),… More
Everyone is in favor of transparency and anti-corruption – at least, everyone except the occasional despot or dictator. Yet substantial controversy now swirls around the disclosure of the vast sums that governments receive from mining and oil projects.
The question is not whether the streams of payments paid to governments by oil, gas, and mining companies should be disclosed, but how.… More
Recent revelations regarding surveillance activities by the U.S. Government have raised many questions regarding the balance between privacy and security. There have already been, and there will continue to be, Congressional hearings and other public policy forums regarding the appropriate scope of government surveillance efforts and the role of private companies in responding to law enforcement requests.
Beyond questions regarding the scope of government under existing legislation,… More
New Charter Outlines Concrete Steps to Implement the International Code of Conduct for Private Security Contractors
The International Code of Conduct for Private Security Service Providers’ Association recently published its Charter. This marks a critical step in the establishment of oversight and governance processes to operationalize the commitments outlined in the International Code of Conduct for Private Security Providers (“ICoC”).
The ICoC is a multistakeholder initiative the aim of which is to establish principles and standards for the private security industry based on international human rights and humanitarian law.… More
A number of significant briefs were filed recently with the U.S. Court of Appeals for the D.C. Circuit in support of Section 1504 of the Dodd-Frank Act, which requires oil, gas, and mining issuers to report on their payments to governments.
On January 16, Oxfam filed an intervenor brief in the case that the American Petroleum Institute (“API”) and others have brought against the Securities and Exchange Commission (“SEC”) to block its final rule. … More
Human rights due diligence requires many of the hallmarks of existing corporate compliance programs: clear policies; assessments of risk; and the integration of strong standards into corporate management systems. This provides companies with the opportunity to leverage the capacity of a variety of existing internal compliance programs in an effort to integrate consideration of human rights-related risks and impacts into the management of their operations.… More
We are pleased to announce the launch of the Conflict Minerals Consortium, a cross-industry group of service providers working to assist companies in meeting the requirements of the Securities and Exchange Commission’s new conflict minerals rule.
Foley Hoag is the only law firm member of the consortium and will be working to advise clients on the legal aspects of compliance with the new rule,… More
On August 22, the Securities and Exchange Commission (“SEC”) voted two to one in favor of a final rule implementing Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Commissioners Schapiro and Paredes were recused from the vote. A copy of the final rule is available here (.pdf).
One of the challenges for companies seeking to manage the adverse human rights impacts of their operations is how to deal with impacts that are most directly tied to business partners, suppliers, and even governments. Companies have varying degrees of control over the actions of third parties, and yet the activities of third parties have the potential to expose companies to a range of reputational – and legal – risks.… More
Does your board exercise proper oversight over cybersecurity risks? Directors and officers have fiduciary duties to protect the assets of their companies. This obligation covers digital assets, including corporate information, applications, and networks. The scope of the obligation is defined, in part, by laws and regulations that impose specific privacy and security obligations on companies.
The threats to digital assets are real, and companies are increasingly grappling with how best to manage network infiltrations,… More
U.S. domestic counterterrorism measures are a critical component of the U.S. national security framework. Since the U.S. Supreme Court’s June 2010 decision in Holder v. Humanitarian Law Project, there has been renewed debate about the scope and impact of various U.S. measures including the Material Support Statute (18 U.S.C. § 2339B) and Executive Orders pursuant to the International Emergency Economic Powers Act (IEEPA) (50 U.S.C.… More
Integrating corporate social responsibility ("CSR") into compliance structures and processes can be critical to ensuring a company’s CSR commitments are communicated and acted upon. Only then can a company reap the intended benefits of a voluntary commitment, whether those benefits are legal, reputational, or operational. Ideally, CSR should be integrated into training, learning, report, and auditing vertically and horizontally across a company.