Travel Security Duty of Care RISKS and OPPORTUNITIES

Travel Security & Duty of Care: RISKS and OPPORTUNITIES David Hyde, M. Sc, CPC CBTG Meeting January 21 st, 2016

Presentation Overview 1. Changing travel risks and new business realities 2. Rise in global disruptive events 3. Duty of care: oft-quoted and oft-misunderstood 4. Business travel: expanding legal obligations for employers and senior managers 5. Reputation management: the evolving, unforgiving court of public opinion 6. Travel risk management: Common misconceptions, best and emerging TRM practices 7. Where there’s risk there’s opportunity: business opportunities for TMC’s

Protecting Business Travellers: Changing Risks & New Realities Operational Travel-related Risks “Businesses face a growing array of risks related to business travel. Risk management has become the cornerstone of 21 st century business so managing travel-related risks has never been so important!” Financial Business Travel Risks Business Reputation Legal

Protecting Business Travellers: The Risk Landscape OHS/OSH Law Risk Considerations “The unpredictability of global disruptive events, increasing legal liability and concerns over business reputation are the primary drivers of organizations’ expanding travel security and duty of care activities” Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Management Foreign Laws Global Disruptive Events

The world is becoming a more dangerous and unpredictable place… OHS/OSH Law Disruptive Events “Whether it’s terrorism, social unrest, organized crime, adverse weather or other disruptions, business travellers (and their employers) face increasingly complex and unpredictable risks. ” Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Management Foreign Laws Global Disruptive Events

Global business travel is becoming far more “risky” OHS/OSH Law 1. Global escalation in disruptive events Employer Criminal Negligence Duty of Care 2. Increased socio-economic & geo-political instability 3. Growing threat from transnational organized crime & the evolving terrorism threat 4. Affecting areas hitherto deemed to be “safe” Protection of Business Travellers Foreign Laws Reputation Management Global Disruptive Events

“Duty of Care” is widely quoted and equally widely misunderstood… OHS/OSH Law What is Duty of Care? “A legal standard placed on an organization requiring that it exercise due diligence in taking all reasonable steps to protect travelling employees from foreseeable harm. ” Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Management Foreign Laws Global Disruptive Events

Employers Face a Growing Moral, Fiduciary and Legal Duty of Care “Business travel is exposing both employees and employers to greater risks. Away from familiar surroundings, employees may encounter precarious environments and unfamiliar threats to their health, safety, and security. This heightens the corporate liability of employers, who have a legal, fiduciary, and moral Duty of Care for their employees. ” Dr. Lisbeth Claus, ‘Duty of Care of Employers for Protecting International Assignees. . . ’, 2009 OHS/OSH Law Employer Criminal Negligence Duty of Care Protection of Business Travellers Foreign Laws Reputation Management Global Disruptive Events

OHS/OSH Law - Overview OHS/OSH Law What is it? Government Acts and Regulations setting out minimum legal standards in protecting the health and safety of employees Employer Criminal Negligence Duty of Care Protection of Business Travellers Sanctions: 1. Both organizations and individuals 2. High monetary fines &/or jail time Reputation Manageme nt Foreign Laws Global Disruptive Events

OHS/OSH Law - Scope OHS/OS H Law Scope In all N. American jurisdictions Legal Standard Take all reasonable steps to protect the safety of employees while performing work-related functions Definition of “Worker” Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Usually includes contract workers Definition of “Workplace” Wherever works takes place – very broad; incorporates work travel Global Disruptiv e Events

Workplace Violence: The New Frontier in OHS Law OHS/OS H Law Scope of workplace violence law Growing obligations under OSHA/OHSA Protection of Business Travellers Business Travel Examples Subway mugging, unprovoked assault, kidnapping/abduction, sexual assault, terrorist attack, shooting/stabbing, stalking, carjacking, street robbery. . . Employer Criminal Negligence Duty of Care Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Workplace Violence Law: Key Compliance Requirements OHS/OS H Law 1. Workplace violence risk assessment 2. Anti-violence policies and procedures 3. Provide information/training to employees 4. Emergency response protocols 5. Mechanism to summon assistance in an emergency Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Workplace Violence Legislation: Example from Ontario, Canada OHS/OS H Law Impact of Ontario’s Bill 168 “A substantial, if not radical change to employer responsibilities under OHSA. ” [Norm Keith, Gowlings LLP] Protection of Business Travellers Scope of Risk Assessment Employer must assess the risks of workplace violence arising from: 1. 2. 3. 4. Employer Criminal Negligence Duty of Care Reputation Manageme nt Foreign Laws the nature of the workplace; the type of work; the conditions of work; circumstances in similar workplaces Global Disruptiv e Events

Workplace Violence Legislation: Ontario (Bill 168) – contd. Scope of Violence Prevention Program Employer must develop and maintain a workplace violence program to incorporate at a minimum: 1. measures/procedures to control the risks identified in the assessment; 2. measures/procedures for summoning immediate assistance; 3. measures/procedures for workers to report violent incidents. OHS/OS H Law Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Workplace Violence Law and Global Business Travel (Ontario example) OHS/OS H Law Quotes from Ministry of Labour “The workplace violence program must have measures & procedures in place to control the risks faced by mobile workers. ” “Is the worker being directed and paid to be there or to be near there? If the answer is “yes” then it is a workplace. ” “We reserve a right to lay charges if an employee is injured or killed abroad where the Ontario employer failed to comply with Bill 168. ” Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Consider this scenario. . . OHS/OS H Law 1. A Canadian business traveller is injured or killed in a foreign country. 2. It turns out the employer failed to perform a risk assessment, create a policy, enact risk control measures, or provide safety guidance. 3. Is that employer accountable for such acts of non-compliance under the OHS statute or regulation in, for example, Ontario? 4. The violence may have occurred abroad but the breach of the Act would have occurred in Ontario Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Employer Criminal Negligence: Bill C-45 Amendment OHS/OSH Law What is it? Bill C-45 (Criminal Code amendment) enacted in 2004 after Westray mining disaster. Duty of Care What is its Purpose? Protection of Business Travellers Elevates OHS risk to criminal legal liability for individuals and organizations. Possible Sanctions 1. Up to $100, 000 individuals 2. Unlimited for organization 3. Fines not tax-deductible 4. Up to life in jail Employer Criminal Negligenc e Reputation Manageme nt Foreign Laws Global Disruptive Events

Employer Criminal Negligence: Elements of the Offence OHS/OSH Law Offence An individual is guilty of criminal negligence: i. If he/she fails to take reasonable steps to prevent bodily harm and shows wanton and reckless disregard An organization is guilty of criminal negligence: i. If a representative commits criminal negligence AND ii. A senior officer departs markedly from a standard of care that could reasonably prevent a representative’s negligent act Employer Criminal Negligenc e Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Employer Criminal Negligence: Recent Case Decision OHS/OSH Law R v Transpave Inc. “Transpavé acknowledges having failed in its duty by not putting in place appropriate safety measures to counter [those actions]. It also failed to its duty of authority by not ensuring that its employees respect the safety measures put in place. ” Employer Criminal Negligenc e Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Nexus Between Bill C-45 and Global Business Travel 1. Bill C-45 is federal law and applies all across Canada. 2. There is no geographical boundary identified with Bill C-45. 3. Prevailing legal opinion says: i. Bill C-45 infractions often involve a management act or omission away from the immediate workplace ii. This makes it more likely that prosecutors will lay a charge in the event of a death or serious injury abroad OHS/OSH Law Employer Criminal Negligenc e Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptiv e Events

Conformance with Foreign Laws (and Customs) OHS/OSH Law The Issue Business travellers must abide by foreign laws and customs. Scope Addresses the behaviour/acts of travelling employees as well as acts against them. Possible Sanctions 1. Massive fines for the organization 2. Jail time for employees Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Manageme nt Foreign Laws Global Disruptive Events

Protecting Business Travellers: The New Legal Standard Recap • Increasing risks to global travellers drives up DOC • In the event of an injury or death abroad, OHS/OSH and criminal negligence laws are likely to be in play Multiplier Effect • OHS laws set minimum standards for employers • These minimum standards are likely to influence legal decisions related to duty of care DUTY OF CARE Employer Criminal Negligence OHS/OSH Law Protection of Business Travellers

Protecting Business Travellers: Rethinking “Duty of Care” Duty of Care – “Defence” DUTY OF CARE DEMONSTRATE DUE DILIGENCE 1. FORESEEABILITY Employer Criminal Negligence OHS/OSH Law + 2. REASONABILITY Consider 1. Elevated global travel risks are driving up foreseeability 2. In duty of care cases, judges often look at legal and industry standards to establish reasonability Protection of Business Travellers

Managing corporate reputation OHS/OSH Law The Issue Reputation management has become a key driver of business in a social media age. Scope Organizations are increasingly held to a higher standard in the “court of public opinion”. The “New Media” The proliferation of social (forms of) media amplifies and disseminates negative messages now more than ever before. Employer Criminal Negligence Duty of Care Protection of Business Travellers Reputation Managem ent Foreign Laws Global Disruptive Events

Protecting Business Travellers: Common Beliefs and Shortcomings DUTY OF CARE 1. Standard group benefits plans fully address global business travel risks 2. Only employees travelling to high risk destinations need assistance Employer Criminal Negligence OHS/OSH Law 3. Business travellers don’t work in a regular workplace so regular workplace rules (laws) don’t apply Protection of Business Travellers 4. Many organizations lack the internal travel risk management acumen to develop & lead program 5. Role confusion, role reluctance and role overlap can lead to bifurcated leadership of the TRM program – Travel, HR, Risk & Insurance, Security, Legal, OH&S, Operations, Executives REPUTATION MANAGEMENT

Protecting Business Travellers: Some Key Steps to Success DUTY OF CARE 1. Appointment of an executive sponsor 2. Formation of a multi-disciplinary TRM steering committee Employer Criminal Negligence OHS/OSH Law 3. Identification and assessment of travel-related risks faced across the organization (domestic, global, location-based, traveller-based) Protection of Business Travellers 4. Identification of the applicable OHS/OSH compliance and duty of care benchmarks 5. Development of a Corporate Safe Travel Plan REPUTATION MANAGEMENT

Protecting Business Travellers: Some Key Steps to Success CSTP Components 1. Corporate TRM policy, procedures and guidelines OHS/OSH Law 2. Pre-trip risk control measures (i. e. destination risk assessments, guidance to business travellers) 3. During-trip risk control measures (i. e. real-time traveller tracking, 2 -way communication protocols) 4. Crisis management support (i. e. emergency response, medical/security evacuation) 5. Post-incident support (i. e. after-incident debrief, employee assistance program) 6. Program audit – continuous improvement DUTY OF CARE Employer Criminal Negligence Protection of Business Travellers REPUTATION MANAGEMENT

Questions? ? ? David Hyde Principal Consultant David Hyde and Associates david@davidhyde. ca www. davidhyde. ca Tel: 647 -477 -3808