Tool 2: Monitoring the Performance of Labor Brokers Introduction and Key Issues of Concern

Transcription

1 VERITÉ Fair Labr. Wrldwide. *Terms & Cnditins f Use F A I R H I R I N G T O O L K I T \ F O R S U P P L I E R S 4. Managing Labr Brkers & Mnitring Tl 2: Mnitring the Perfrmance f Labr Brkers Intrductin and Key Issues f Cncern This tl prvides an intrductin t the ratinale and purpse f the labr brker assessment, wh shuld cnduct it, and an verview f what infrmatin shuld be gathered. It als prvides sme detail as t the key areas f cncern in a labr brker assessment. This tl can be used in cnjunctin with sets f assessment questins fr brkers, wrkers, and dcuments review that are als fund in this sectin f the Fair Hiring Tlkit. INTRODUCTION The purpse f a labr brker perfrmance assessment is t verify whether r nt the brker is perfrming accrding t the legal, ethical, and scial respnsibility requirements that the cmpany has defined. The labr brker perfrmance assessment is a key element in the systems apprach t scial respnsibility. Cmpanies need visibility int hw their labr brkers perate, and a way t measure brker perfrmance against scial respnsibility benchmarks. Perfrmance assessment is especially critical where the prtectin f migrant wrkers against human trafficking and frced labr is cncerned. Having an assessment prcedure in place gives cmpanies an bjective basis fr management decisins, and helps prtect against hidden abuses. It als drives labr brkers tward perfrmance effectiveness and cntinuus imprvement, and tward meeting agreed upn gals related t business and scial respnsibility. Verité recmmends that a designated mnitring team, preferably frm the human resurces department, shuld perfrm the assessment. Members f the team shuld be knwledgeable in the cmpany s scial respnsibility prgram and trained t cnduct a thrugh, bjective assessment. An independent third-party auditr may, alternatively, be engaged. Individual cmpanies shuld judge the best time fr assessment based n the jb cycle and ther cnsideratins. Where the utsurcing f recruitment and hiring is cncerned, an assessment f the labr brker shuld be cnducted sn after the migrant wrkers arrive at the facility. Assessments shuld als be cnducted prir t cntract renewal r in advance f a subsequent deplyment f wrkers. Brkers charged with aspects f n-site management shuld be assessed peridically. Where prblems are fund, fllw up assessments t evaluate the success f any remediatin prcedures shuld be perfrmed. In essence, yur assessment f the labr brker replicates the assessment prcess cnducted f yur facility by yur internal auditrs r by auditrs cntracted by custmers. The actual perfrmance assessment itself requires a prcess f triangulatin gathering and analyzing infrmatin frm several surces. Verité recmmends gathering infrmatin frm all f the fllwing surces, where pssible and relevant: Agency management fficers and persnnel; Migrant wrkers; External stakehlders, such as gvernment agencies accrediting labr brkers and NGOs that wrk with trafficking victims; Dcuments, including: Business recrds - license, registratin, etc. Payrll recrds Fees and payment recrds Wrker dcumentatin Discipline recrds Grievance recrds Actual bservatins during physical inspectins;

2 Living and dining areas Offices f the brker agency. KEY ISSUES OF CONCERN This tl can act as a guide fr a hst facility, brker r a third-party mnitr in assessing functinal areas f brker perfrmance that can becme surces f risk and nncmpliance t standards n frced labr. This tl intrduces sme key issues that shuld be included in the labr brker assessment, including: Recruitment fees; On-Barding, rientatin and training; Wages and benefits; Lans, depsits and deductins; Drmitry and husing; Grievance mechanisms / Wrker feedback and cmmunicatin; Human treatment; and Dcument retentin. Fr each tpic area, the need and cntext fr screening is explained, fllwed by a list f infrmatin t gather, and an articulatin f key red flags and risks t lk ut fr. In additin t the issues articulated belw, yu shuld als fllw up n the issues raised during the initial brker screening, t ensure that prcesses have nt changed and n additinal risks have been intrduced. Because the issue f recruitment fees is perhaps the mst critical, where the risk f trafficking and frced labr is cncerned, it is repeated in bth sectins f this Tlkit. ASSESSMENT AREA: RECRUITMENT FEES Why are yu assessing the labr brker s plicy and prcedures n recruitment fees? There is always a risk that a labr brker has charged jbseekers unauthrized r illegal fees, r has frced jbseekers t pay fr services at amunts r interest rates that are excessive. In such cases, wrkers may be entering a situatin f debt bndage r frced labr even befre they set ft at yur facility. It is therefre imprtant that yu cmmunicate clearly t yur labr brker which fees can and cannt be charged jbseekers. Oversight must als be in place t ensure that the labr brker abides by these rules. It is difficult t find hard evidence f vilatins t the emplyers pay standard, because such fee-charge vilatins rarely have a paper trail, r the paper trail is dctred up t hide illegal fee charges. Wrkers are ften the nly surce f infrmatin regarding vilatins f this standard. It is imprtant that wrkers have a safe means fr reprting vilatins directly t yu, and that there is a credible and well-cmmunicated prcedure t investigate and respnd t such reprts. It is als imprtant t levy penalties fr vilatins f the emplyer pays plicy, and t reimburse wrkers fr any fee vercharges. A descriptin f hw the labr brker ensures cmpliance with the emplyers pay plicy (e.g., the plicy is included in wrk cntracts, and sanctins are in place fr nncmpliance). A list f expenses charged t jbseekers. Mechanisms fr jbseekers t reprt vilatins f cmpany plicy n recruitment fees. Prcedures fr refunding fee vercharges.

3 There is n written cmmitment by the labr brker t adhere t the emplyers-pay plicy. There is n effective and safe prcedure fr wrkers t reprt ethical vilatins by internal staff r subcntractrs f the emplyers-pay plicy (e.g., wrkers are cached t lie abut fees and expenses). Jbseekers are charged a reservatin fee and/r illegal depsits. Illegal fees are charged t wrkers fr prcessing f deplyment dcumentatin. Jbseekers are charged excessive fees fr mandatry skills training. Jbseekers are charged fees beynd market rates fr brker-wned r -perated accmmdatins during the predeplyment perid. ASSESSMENT AREA: ON-BOARDING, ORIENTATION AND TRAINING Why are yu assessing the n-barding, rientatin, and training f migrant wrkers? By assessing the n-barding, rientatin, and training f migrant wrkers, yu will be able t understand hw wrkers are infrmed abut cmpany plicies and emplyment cnditins; hw the cmpany ensures that wrkers clearly understand the plicies and cnditins; and whether these plicies and cnditins are explained t wrkers in a language that they understand. Yu als need t check if the infrmatin prvided t the wrkers during the n-barding prcess are similar t the nes they receive prir t their start f emplyment in the facility. It is particularly imprtant t knw whether the terms and cnditins that the wrkers agreed t are cnsistent with the nes ffered t them at the start f their emplyment, and if these terms and cnditins are cnsistent with actual practice. Mst wrkers will have signed a cntract in their cuntry f rigin which was likely apprved by their sending cuntry authrity. In mst cases, these cntracts are patterned after standard gvernment cntracts t expedite wrkers deplyment abrad. Hwever, upn arrival in the receiving cuntry, sme cmpanies ask wrkers t sign supplemental agreements. These agreements ften cntain additinal terms and cnditins that can be unfavrable t wrkers but wrkers have little leverage t refuse t sign. Yu als need t understand if the cmpany als prvides training prgrams fr migrant wrkers and whether these are in place and are respnsive t the needs f the cmpany and the wrker. On-Barding Prgram; Schedule Areas cvered Dcumentatin Training Materials Training Prgram; Descriptin f training prgrams prvided by the brker r the facility Skills imprvement training prgram Wrker educatin and awareness training Legally-mandated certificatin and skills prgrams Language training Hand-uts, wrker s cpy f training materials Skills assessment r skills gap assessment Languages spken by the wrkers Training Fees; Training csts Wh is respnsible fr training csts?

4 Trainers; What qualificatins d the trainers have? Is training run by facility staff r is it utsurced? Wrker perfrmance review practices and prcedures; Wrker educatin and cmmunicatin f perfrmance review plicy and prcedures; and Skill grade/classificatin f wrkers Organizatinal structure f facility Pay structure. There are n clear prcedures fr cnducting n-barding, rientatin, and training f new hires; Infrmatin prvided t wrkers in n-barding, rientatin, and training practices are nt cnsistent with cmpany plicies and prcedures; On-barding, rientatin, and training are cnducted by brker r subcntractr, which may result in incnsistent messaging and insufficient infrmatin; The n-barding, rientatin, and training are cnducted in a language wrkers d nt understand; Wrkers are required t sign supplemental agreements during the n-barding prcess. Labr brkers charge training fees t wrkers; r A training bnd r a cnditin fr acquiring training that can result in wrkers being unable t terminate their cntract freely (i.e., the wrker was required t pay a bnd upn hire, a prtin f which was t pay fr training). ASSESSMENT AREA: COMPENSATION AND BENEFITS Why are yu assessing yur cmpany s cmpensatin and benefits system? The areas f cmpensatin and benefits are clsely tied t the risks f frced labr as wrkers can becme invluntarily tied t the jb due t a cmpany s r brker s wage practices. Specific risks include underpayment f wages and unauthrized deductins and withhldings. An assessment will help yu determine if wrkers are paid the wage rate that was prmised t them; if their wages are paid in the manner that the wrkers agreed t; and if wrkers are able t terminate their emplyment withut sacrificing pay fr hurs previusly wrked. If deductins r withhldings are made frm wrkers pay, an assessment will help yu determine if this is a legally allwed practice and if it culd result in frced labr. What is the legal minimum wage applicable t the facility?; What are the legal requirements n wages, including vertime pay, and benefits?; Pay practices; Hw are wages paid? What are the frms f wage payments (cash, depsit in wrker s bank accunt, etc.)? Wh has access t wrker s payrll bank accunt? Pay cycle Payrll perid Pay dates (imprtant: determine number f days lapsed frm last day f payrll perid t pay day) Pay structure; What is the basic pay rate? What are the vertime rates and ther nn-regular rates (hliday, rest day, etc.)? Are any cash allwances given?

5 Are any prductivity incentives awarded? Are any bnuses Pay deductins; Are there any legally mandated deductins (e.g. scial security premiums)? Other deductins Is any type f savings prgram implemented? If yes, is this savings prgram implemented with r withut the wrkers cnsent? Benefits; Are legally mandated benefits prvided? Which additinal benefits are prvided by the cmpany? and Wrker Educatin n Wages and Benefits; Hw are wrkers educated n wage calculatins? Hw are wrkers educated n accessing benefits? Underpayment r delayed payment f wages; Labr brkers have access t wrkers bank accunts, resulting in: Frced savings Illegal deductins Wrkers are uninfrmed r misinfrmed abut wage rates and deductins; r N pay slips are prvided. ASSESSMENT AREA: LOANS, DEPOSITS, AND DEDUCTIONS Why are yu assessing fees, depsits, and deductins? Excessive r illegal fees heighten wrkers vulnerability t frced labr. In rder t have a clear picture f the vulnerability f yur wrkfrce t debt bndage and frced labr, yu will want a full accunting f all fees, depsits and deductins t which migrant wrkers are subject. T determine wrkers vulnerability it is imprtant t understand the purpse, legality, and methds f levy fr each f the fees, depsits, and deductins. In additin, yu will need t knw hw wrkers repay these fees and whether repayment schemes restrict wrkers ability t terminate their emplyment. Fees and lans due t brkers; What is the schedule f payments? What are the terms f repayment? What is the fee schedule r line items fr the fees? What ut-f-pcket payments t facility r t brker is the wrker required t make? Depsits, bnds and savings; Security bnd r depsit Schedule f payments Terms f payment Terms fr returning savings t wrkers Brker- r cmpany-managed savings; Where the savings are kept r depsited. If bank accunt, wh has access? Is it an ATM accunt r bankbk accunt? Wh keeps the bank bk? Getting wrkers cnsent fr savings D wrkers have access t their savings? What are the terms fr returning savings t wrkers Deductins;

6 Penalties, fines Meals Husing Unifrms Tls Dcumentatin f payments; Are all pay deductins recrded in pay slips? If final deductins are taken, are they recrded? (Net pay as reflected in pay slip versus pay depsited in wrker s accunt?) Wrker s cpy f prf f payment. Wrkers are charged brker fees fr n-site management; Wrkers are induced r encuraged t take lans frm the brker r the facility at excessive interest rates r unreasnable terms f payment; Wrkers are required t ldge depsits befre taking up emplyment, and during emplyment; Wrkers are ill-infrmed abut the terms r the full amunt f lans r deductins; r Autmatic deductins fr lan payments are made against wrkers salary. ASSESSMENT AREA: DORMITORY AND HOUSING Why are yu assessing husing and drmitry? Yu will want t knw the full details f the husing prvided t migrant wrkers, especially if these wrkers have n chice but t rely n the receiving-cuntry labr brker r the hst facility t secure their husing. Yu will want t check if the husing prvided t wrkers is cmfrtable, safe, and secure; and whether wrkers can freely enter r leave the premises. Yu need t check the huse r drmitry rules and regulatins, and whether there are unreasnable restrictins n wrkers freedm f mvement. Inquiring abut the security plicy f the drmitry als alerts t safety risks. Fr example, pad-lcking the gate frm the inside after curfew hurs with the key nt readily accessible may result in wrkers getting trapped inside in case f fire. Yu need t knw wh is managing the drmitry, what their specific functinal tasks are, and if they are prperly trained r equipped t fulfill the task. The related expenses, if the accmmdatins are nt prvided fr free, shuld als be lked int. Yu need t knw hw much is charged, hw payments are cllected, and whether these are reasnable rates. Wh manages the living quarters?; Wh bears the verhead expenses f the drmitry?; Rules n leaving and entering the living quarters; Other drmitry security prcedures; Rules while in the drmitry; Huse-keeping practices; and Emergency preparedness prcedures. Wrkers d nt secure their husing accmmdatins themselves; Brkers r emplyers require wrkers t stay in brker-cntrlled r cmpany-cntrlled husing facilities;

7 Curfews are implemented in the drmitries, and wrkers are unable t enter r leave the premises freely; There are penalties fr staying ut, r fr nt returning t the drmitry r husing facility at a designated time; Gates are clsed at designated times; r Security persnnel are instructed t restrict wrkers frm leaving r entering the drmitry r husing facility. ASSESSMENT AREA: DISCIPLINE AND TERMINATION Why are yu assessing the facility s plicy and practices n discipline and terminatin? Disciplinary prcedures whether frm the facility r brker -- shuld be based n a clear set f rules and regulatins that apply t all wrkers, regardless f emplyment status, r natinality and shuld include the right t due prcess. The prcess fr terminatin shuld be legal and fair. Migrant wrkers shuld be able t refuse vertime, fr example, withut fearing early terminatin f their cntract. Further, cnditins fr vluntary terminatin f the cntract shuld nt be s prhibitive that wrkers are unable t leave a jb. What are standard rules and regulatins, cde f discipline? Are there categries f miscnduct? Which miscnduct is subject t a series f warnings? Which is subject t immediate terminatin? Prcedure fr investigating reprts f disciplinary vilatins; Hw are wrkers ntified f a disciplinary citatin? What prcesses are in place fr wrkers t appeal r challenge a disciplinary actin? Descriptin f disciplinary actin taken by management; Are escalating warnings issued t wrkers in respnse t behavir r perfrmance issues? Recrds kept n disciplinary prceedings; Terms and cnditins t terminate cntract; What penalties fr nt cmpleting duratin f cntract? Prcess fr clearing resigned r terminated wrker; When d resigned r terminated wrker get their last wages? Training and educatin; Hw are managers and supervisrs trained n disciplinary plicy? Hw are wrkers trained n discipline plicy? Managers and supervisrs are nt adequately trained t implement the cmpany s plicy n discipline; Wrkers are nt aware f the cmpany s plicy n discipline; Wrkers are nt aware f perfrmance bjectives and the parameters against which they are evaluated; Management des nt dcument disciplinary prceedings; Punitive deductins, unpaid wrk r frced vertime are a part f disciplinary measures; r There are penalties fr early cntract terminatin.

8 ASSESSMENT AREA: WORKER DOCUMENTATION Why are yu assessing the brker s r hst facility s practices fr string and securing wrker s dcuments? It is critical t determine if the cmpany r brker hlds wrkers riginal dcuments such as passprts. Withut access t such dcuments, wrkers are effectively bund t the wrksite. If passprts are held, they shuld be submitted vluntarily and wrkers shuld have unencumbered access thrugh a clear prcess. The key questin t cnsider is whether practices arund wrker dcumentatin retentin create situatins where the wrkers freedm f mvement, r ability t terminate cntract fr reasnable cause, are restricted. Dcumentary requirements when applying fr the jb; Which dcuments are wrkers required t shw t the facility r brker: riginal, gvernment-certified, r phtcpy? Which dcuments are wrkers required t submit t the facility r brker: riginal, gvernment-certified, r phtcpy? Dcumentary requirements upn hire; Which dcuments are wrkers required t submit t the facility r brker upn hire: riginal, gvernmentcertified, r phtcpy? Which riginal dcuments are held by the facility r brker? When are they handed ver t the factry r brker? Where are dcuments stred? Wh requests wrkers dcuments? What reasn is given fr the dcument retentin? If used fr prcessing f ther legal papers, are they immediately returned t the wrker after prcessing? Prcedure and practices fr filing and keeping wrkers dcuments; (If facility r brker keeps the wrker s travel and wrk dcuments) What facility- r brker-prvided strage systems are prvided t wrkers t keep their travel and wrk dcuments? Hw can wrkers access their dcuments? D wrkers give their cnsent in submitting their dcuments? Wrkers are required t surrender their passprts and ther key dcuments t the brker r emplyer; Passprts are taken withut the wrkers full and infrmed cnsent; Passprts are taken frm wrkers fr safekeeping, and wrkers are made t sign a waiver indicating their cnsent; Wrkers are required t pst a bnd r pay a depsit in rder t retrieve passprts. Wrkers are misinfrmed abut their right t secure their wn dcuments; r Wrkers are nt prvided means t secure their wn dcuments. The abve infrmatin can be helpful t cmpanies as they embark n a labr brker assessment. Cmpanies shuld keep these key issues f cncern at the frefrnt f the assessment prcess.