Contributed by T. Markus Funk, Perkins Coie
A fresh wave of legislation designed to foster and promote what its backers alternatively describe as responsible corporate citizenship or corporate social responsibility is cresting on U.S. businesses' shores—and this time the aim is to combat the world’s most serious forms of labor exploitation. But unlike, say, the Foreign Corrupt Practices Act1 or the Dodd-Frank Act's proposed Conflict Mineral Provision,2 this regulatory intervention designed to advance ethical and moral imperatives has arrived with little fanfare. That said, its importance should not go unnoticed. In fact, the requirements of substantial due diligence and disclosures, the corresponding threat of negative publicity in the case of non-compliance, state and federal legislative actions and public pronouncements, potential down-stream Alien Tort Claims Act lawsuits, and the real risk of class action lawsuits if disclosures are thought to be incomplete or inaccurate3 are all signs that the vetting of global supply chains for evidence of human trafficking, forced labor, slavery, and child labor is poised to become the next hot topic in corporate boardrooms and compliance offices.
Deconstructing the Landmark California Transparency in Supply Chains Act
Labor exploitation, particularly in the developing world, is a genuine problem. A 2010 U.S. Department of Labor study, for example, found that some 128 different products from 70 countries were made with forced labor (which includes situations in which workers are forced to hand over nearly all of their wages to recruiters to pay off bogus "debts") and child labor in violation of international standards. Additionally, the U.S. Department of State’s comprehensive Trafficking in Persons Reports4 annually highlight those regions of the world having the greatest trafficking and labor exploitation issues.5 Consider the case of Apple, even after applying significant (not to mention well-publicized) supply chain due diligence and vetting efforts, the company recently reported that over a quarter of its suppliers were not compliant with its labor and human rights standards (including 22 percent supplier non-compliance in the area of forced labor).6 Signaling the U.S. Government’s authentic, strengthening intention both to recruit and motivate private enterprises into the supply chain fight, Secretary of State Hillary Rodham Clinton recently said: [T]he United States and the international community have made the solemn commitment to fight this scourge wherever it exists. . . . [The U.S. Government] must work with industry leaders so that consumers can know that the products or services they buy come from responsible sources.7 In response to such increasingly vocal calls for action, in 2011 the California legislature passed the landmark California Transparency in Supply Chains Act of 2010 (SB 657).8 Effective January 1, 2012, the California Act requires qualifying companies to detail and publicly disclose the nature and scope of their efforts to eradicate human trafficking, slavery, child labor, and forced labor from their worldwide supply chains. As sketched out in the below flow chart, to trigger the California Act's rather extensive disclosure provisions a company must:
The California Act’s relatively broad definition of "doing business" includes companies that, for example, have California sales in excess of $500,000; own real or tangible personal property in California exceeding $50,000; or have a California payroll exceeding $50,000. Given California's economic standing as the ninth largest economy in the world, almost all global companies meeting the annual receipts threshold will likely have to comply with the Act's public disclosure requirements. Setting aside policy arguments about the wisdom of attempting to legislate responsible corporate citizenship overseas (and through often difficult-to-control third parties), the California Act's vision of a compliant supply chain certainly requires heightened corporate due diligence and vetting efforts. Consider, for example, that, as illustrated above, companies falling under the Act must report not only their training programs and efforts to audit and vet each and every one of their direct global suppliers, but they must also set forth what they have done to ensure that their suppliers' suppliers are compliant. What this means is if, for example, a U.S. sporting goods retailer doing business in California purchases soccer shoes from an overseas supplier, the U.S. retailer is expected to not only ensure that the direct supplier/manufacturer of the shoes has not used trafficked, slave, forced, or child labor in the manufacturing of the shoes, but the U.S. retailer must additionally certify that the supplier’s supplier(s)—including the overseas shoe manufacturer’s source for the raw materials to make the shoe, such as the rubber soles, leather, and shoe laces—are not engaged in such labor practices. This, indeed, heralds a new era of supply chain scrutiny. The California Act’s net impact is that, for a company to be able to report a clean bill of supply chain health, the retailers or manufacturers must conduct relatively far-reaching due diligence into their various supply chains (and sub-chains). In turn, this might well change the contractual relationship between a manufacturer or retailer and its suppliers. Consider, for example, that a company subject to the Act might well find it necessary to: (1) adopt contractual provisions conferring sweeping audit rights into its suppliers' labor practices; (2) insist on broadly-worded, actionable representations, certifications, and warranties that address these labor practices; and (3) include indemnification provisions that hold upstream suppliers responsible for any damages or liabilities it suffers—whether pecuniary or even reputational—for a contractual breach. Given these heightened due diligence obligations, a company in theory could of course opt to violate the Act by not making the requisite disclosure, or, alternatively, could choose to publicly disclose that it has not conducted a thorough analysis of its supply chains. These largely unacceptable alternatives, combined with the specter of class action lawsuits for false advertising based on misleading disclosures, underscore the need for careful, strategic, and thorough supply chain due diligence conducted by experienced practitioners.
The Federal Response to California’s Act: Introducing Congress' Business Transparency on Trafficking and Slavery Act
Hot on the heels of the California Supply Chains Act is the "Business Transparency on Trafficking and Slavery Act,"10 introduced in Congress on August 1, 2011. If the Trafficking and Slavery Act's Congressional sponsors prevail, it will amend 15 U.S.C. § 78m (which, perhaps somewhat ironically, is located on the same legislative block as its older and much more well known sibling, the Foreign Corrupt Practices Act). This Act indeed picks up the California legislation's leitmotiv: "[T]he United States is the world's largest importer, and in the twenty-first century, investors, consumers, and broader civil society increasingly demand information about the human rights impact of products in the United States market." Put another way, the express intent is to fight global labor exploitation one supply chain at a time. As the above flow chart demonstrates, the Trafficking and Slavery Act by its own terms tracks the California Act in virtually all substantive aspects, and in those areas where there is a difference the pending bill is even more forward-leaning. If passed, the Trafficking and Slavery Act will in effect federalize (and, indeed, expand) the California Act's core requirements, thereby making it applicable to every company in the country falling within its jurisdictional reach.
The Laws of Other States
Other state laws can be used to charge companies found to have trafficked or forced child or slave labor in their supply chains. In terms of a broad overview, state approaches to business liability for human trafficking violations have generally fallen into three categories:
Although these laws certainly do not target the supply chain as directly as the California Act and the pending federal bill, they are worth noting because they are capable of being interpreted in a way that could create liability for companies who, for example, either know about or consciously disregard a high probability that their products are made with such exploited labor.
So What Is A Company To Do?
The California Transparency in Supply Chains Act and the Trafficking and Slavery Act both focus on companies with the greatest revenue (that is, those companies who, according to the laws' backers, have the most economic power over their supply chain). These same large, successful companies are also most easily targeted by consumer and human rights groups in the United States, Europe, and elsewhere. Whether from non-governmental organizations or from state, federal, and international government, the pressure to broadly mandate supply chain scrutiny is mounting. Vetting one’s supply chain is quickly shaping up to be the new compliance—not to mention public relations11—crisis. But what is a savvy, proactive company to do? In general terms, companies should consult with subject matter experts to: (1) assess their particular risk profile and identify the areas of greatest liability exposure; (2) devise appropriate standards of conduct and incorporate them into their existing policies and procedures; (3) implement these standards throughout their supply chain; and (4) devise an audit program and perform audits to vet their supply chain (and sub-chains) and, as needed, retain experienced white collar and investigations counsel to conduct internal investigations into potential instances of non-compliance and to help tailor appropriate crisis responses. These steps can of course be integrated into a broader corporate social responsibility policy that encompasses consideration such as safe working conditions, anti-corruption efforts, government/community/media relations, avoidance of significant environmental threats, and whistleblower protections. Moving from the general to the specific, here are just some of the concrete steps a company that wants to stay ahead of this developing regulatory trend should consider:
Like it or not, the new era of supply chain due diligence is about to be upon us, so proactively designing appropriate measures to ward off negative public relations—not to mention costly litigation and adverse regulatory complications—is simply smart business.
T. Markus Funk, who spent ten years as a federal prosecutor in Chicago, is a Partner at Perkins Coie focusing on compliance, litigation, and white collar investigations and defense. Mr. Funk and US District Judge Virginia Kendall recently co-authored Child Exploitation and Trafficking: Examining the Global Challenges and US Responses (Rowman Littlefield, 2012). In 2010, Mr. Funk wrote Victims Rights and Advocacy at the International Criminal Court (Oxford University Press). From 2004-06, Mr. Funk served in post-conflict Kosovo for the U.S. State Department and the U.S. Department of Justice, where one of his principal duties was to collaborate with local and international authorities to investigate and prosecute transnational human trafficking, and to work with government and business leaders to devise preventative strategies. Mr. Funk co-chairs the ABA’s Global Anti-Corruption Task Force, and chaired the ABA’s Human Trafficking and Organized Crime Committee. He has been awarded the Department of Justice’s and the State Department’s highest respective service awards.
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