The deliberate deception at Volkswagen along with other events such as the insider trading at ImClone Systems and rogue trading at Bearings Bank all demonstrate that employees will break the law in the course of their employment.
The consequences of criminal acts committed by employees can be very significant indeed. In addition to the legal sanctions levied against the employees themselves, business can be lost through loss of reputation, corporations can face fines running into billions of dollars and senior executives can find themselves being prosecuted because the law was broken on their watch. Given that in many cases the courts are finding that the executive leadership of corporations are also criminally liable how can the executive leadership protect themselves and their companies from being held criminally responsible for the activities of their employees?
The employer-employee relationship is undoubtedly complex. Many employees spend more of their waking hours at work than they do with their families and as such the workplace environment can have a significant effect of employees. Most workplace environments and relationships are positive with employees enjoying social events, making friends and even meeting their spouse at work. Unfortunately some are not so good but whatever the nature of the relationship it will have an influence on the employee that will extend outside of the workplace and reach into many parts of their life.
In fact, it is often said the employer-employee relationship is so complex that the second most significant legal transaction that an individual can complete is to accept a job offer, the most complex being getting married. More complex than buying a house and entering into a mortgage, a binding agreement that can last for 25-30 years. So how can it be that an agreement that can be terminated with two weeks’ notice (or even immediately) is almost as significant as a marriage?
Well, the employer will have a significant degree of control over the employee. In addition to determining where they will be and what they will do for a large amount of their time the employer can control or influence who they spend that time with, the opinions they can share, the clothes they wear and even some of their off duty conduct such as how they present themselves on social media. But most importantly, the reason that the employee accepts this level of control from their employer is the employees need to feed, clothe and provide shelter for themselves and often their family also. They are (in most cases) financially dependent on their employer and therefore the employer will have a very significant influence on the employee.
All business are under pressure. The need to be financially viable, to cover the operating costs, to make the payroll and turn a profit are behind every decision. In a today’s fast moving business world corporations need to be innovative, they need to be efficient and they need to stay ahead of their competition. Add this to the raft of regulatory compliance requirements including employment standards (including Human Rights), Occupational Health and Safety (OHS), consumer protection, financial and environmental codes and regulations we can see that business is complicated and it’s challenging. So, given the complicated nature of the employer-employee relationship and the broad range of regulatory obligations placed on corporations, should the executive leadership be held accountable for the conduct of employees, particularly when the number of employees involved can run into the tens or even hundreds of thousands?
The simple answer is yes they should, and for two reasons. The first is that corporations are in business to make money. Whatever their mission, vision or values, ultimately they are there to make a profit for the owner(s) or shareholders. For this reason they can reasonably be expected to conduct themselves ethically and in accordance with all legal obligations and requirements. To do otherwise would simply be wrong. And the second reason is that as a result of the employees financial dependence on the employer, the employee is, in some respects at least, in a position of weakness. In effect, the employer- employee relationship is not one of peers but is one of servant and master.
As previously stated most employer-employee relationships are positive, but they are still not balanced. The employee has a need to provide food, clothing and shelter for themselves and in many cases their family also. As a result they will be motivated to act in their employers best interest. Their success is mutually dependent upon their employer’s success. The business grows, the employee grows. The business stagnates, the employee stagnates. And if the business fails the employee fails. The employee’s need for the business to succeed will be a significant motivator in determining the employees actions and will influence their decisions considerably.
So how does this make the executive leadership accountable for the conduct of their employee? Aren’t the employees as adults with freedom of choice ultimately responsible for their own actions? For the most part, yes they are. Employees can and will be held legally accountable for their actions which in many cases can result in a criminal prosecution. In recent years there have been a number of high profile (and lesser known) prosecutions where employees have been fined or even incarcerated for criminal acts committed in the course of their employment. But the criminal liability doesn’t end there, and for one very important reason.
In addition to being financially dependent upon their employer, all of the employees actions at work will be conducted in an environment and a culture that is created by and is the responsibility of the corporation’s executive leadership and management. That environment and culture will shape every decision that they make to the extent that on occasion they will act in manner that may be contrary to their own values.
In the course of their employment the employee will be required to perform a number of task throughout the day. That’s life, that’s what they’re there for and it’s a perfectly reasonable expectation for the employer to have. But what happens when the employee cannot complete those tasks despite their best efforts? The likelihood is that they will cut corners, bend rules and even break rules, which could include laws, to get the job done because they are motivated to do so as a result of the need to see the business succeed. At one end of the spectrum this could mean minor infractions. Perhaps they will not follow all of the safety rules, they run in the workshop, they don’t put their safety glasses on or they don’t put their seat belt on between deliveries. No harm, no foul, right? Well, no, that’s never the case, but more importantly at the other end of the spectrum we can and do find employees breaking laws relating to matters as serious as insider trader and large scale regulatory non compliance as a result of needing to see the business succeed and to achieve the objectives required as part of their employment.
So how can the executive leadership protect themselves from being held criminally liable for the ac tions of their employees? This certainly isn’t easy given the number of employees involved, all of whom are free thinking adults with the ability to make their own decisions, but it is simple with just a few simple steps. The first is to never overtly ask an employee to commit an illegal act. It’s that simple. The second is to make it clear that no illegal activity will be tolerated by employees in the course of their employment. And to do this all the employer has to do to do this is to clearly and overtly state in their corporate values that they will conduct all of their business operations in accordance with all legal and regulatory obligations and requirements for all jurisdictions within which they conduct business. By making the statement clearly and overtly no one can hide from the requirement of the statement whatever level that they are at in the company. It’s that simple. The third is to make it acceptable for an employee to say ‘I can’t do that,’ to their supervisor or manager when they are faced with the requirement to do something that they cannot do whilst complying with all necessary legal and regulatory requirements. Whether the task at hand would require the employee to cut a corner by failing to wear their personal protective equipment or to deceive a regulatory body the corporate culture must be such that the employee is able to say ‘I can’t do that,’ without fear or recrimination and the supervisors, managers and executive leaders must accept that and be able pass the message up the chain in the same light because if the business goal cannot be achieved within the law, it is not worth achieving. It’s that simple.
‘America First’ vs. Global Financial Stability
The recently concluded annual meeting of the IMF and World Bank group, held in Indonesia last weekend, has highlighted a series of concerning trends with regard to the global economy. It has subsequently left many considering the impacts of a possible global recession that may be looming ahead in the next of couple of years to come. These fears were evident in the worldwide sell-off in global equities last Thursday that has been widely attributed to the IMF revising down its global growth forecast in its World Economic Outlook (WEO) report. The report highlighted growth in a number of developed economies as having plateaued, with rising trade tensions and policy uncertainty greatly contributing to the slow-down. This includes the ongoing trade war between the US and China, as well as the numerous uncertainties pervading within the Euro-Zone.
All of this has had a significant knock-on effect on emerging markets, including Pakistan which has already been struggling with massive fiscal and current account deficits amid rampant inflationary pressures. With tensions between the United States and China still on the rise, Pakistan presents a notable example of how deteriorating global macro-economic conditions have been exacerbated by rising geo-political tensions between these two global powers.
For instance, it took Imran Khan’s fledgling government months to accept the reality of another IMF bailout (Pakistan’s 13th in the last 30 years) despite its $68 billion investment commitment with China. This is because the US, being the largest contributor of funds to the IMF has increasingly politicized this bailout in light of its own deteriorating relations with China. In fact, the US has directly blamed China for Pakistan’s recent debt woes referring to what has been come to known as China’s ‘Debt Trap Diplomacy’. The argument being that the massive loans being doled out by China to developing countries under its Belt & Road Initiative are leading to unsustainable debt levels, eroding their sovereignty while expanding China’s hold over them. Pakistan’s loan obligations to China as part of the China Pakistan Economic Corridor are presented as a case in point.
Despite both Pakistan’s and China’s protests to the contrary, it is widely expected that some of the IMF’s conditions attached to Pakistan’s requested bailout are thus likely to include greater scrutiny and revisions regarding the CPEC initiative. This is likely to form part of the US’s overall objective of limiting and constraining China’s influence over Pakistan and the wider region. The impact this would have on Pakistan however is likely to prove critical considering its precarious economic as well as geo-political position. Not only would the IMF’s conditions limit the new government’s ability to maneuver its economy around an increasingly unstable world financial system; it would also delay the much needed infrastructure projects being planned and implemented under CPEC with Chinese assistance. Therefore, the very purpose of the IMF bailout which is to provide some semblance of stability to Pakistan’s ailing economy, would embroil it deeper in uncertainty as a direct result of the US’s unilateral push against China.
It is worth noting here that during its annual meeting, the IMF clearly voiced its concerns regarding escalating trade tensions between the US and China. While calling for increased dialogue and a careful examination of debt induced risks across the world, the IMF seems to be warning both sides over the fragility of prevailing global economic conditions. At the same meeting, China too echoed these concerns and called for increased dialogue with the US to promote open trade and growth. As a country that has for the last few decades championed globalization, China’s vision of shared global growth and win-win partnerships in emerging markets such as Pakistan, have however been directly challenged by the US. A US, that is in contrast aggressively willing to defend the prevailing status quo, as part of President Trump’s mantra of ‘America First’. Hence it was no surprise that US representatives, in response to these concerns brought up by the IMF and China, have continued to downplay the risks of their policies on global economic stability.
With respect to China and numerous emerging markets such as Pakistan, the fact still remains that the world financial system is currently replete with risks and uncertainty as a direct result of US policy. All of this is occurring while the US President continues to boast about surging US equities and record employment figures as a direct outcome of these policies. While the US economy has experienced sustained growth since the 2008 financial crisis, markets and business cycles have a way of correcting themselves, especially when world leaders themselves point to overbought and overextended conditions.
If the US economy truly is on the cusp of a potential downturn, then present geo-political tensions are more than likely to exacerbate the impacts of an impending global recession. For Pakistan, with its precariously low foreign currency reserves and an unsustainable debt to GDP ratio, such a recession is likely to bring on even bigger problems than any of the potential cuts the IMF may propose on CPEC. Thus, while the US may limit China’s rise as an economic power in the short-term, it does so at the expense of emerging markets and global economic stability in the long-run. This lack of foresight is likely to hurt the US more as it realizes how economies cannot exist within a vacuum in an increasingly interdependent world.
How to finance Asia’s infrastructure gap
Asia’s countries famously need to invest trillions of dollars a year to provide infrastructure required to keep traffic flowing, ports trading, and factories humming. Yet most countries in the region consistently fall short.
The 2017 Asian Development Bank (ADB) report “Meeting Asia’s Infrastructure Needs” puts the infrastructure tab for 45 developing Asian countries at more than US$1.7 trillion per year. Developing Asia now invests only about $881 billion a year, or slightly more than 50 percent of that. This is the infrastructure gap.
Less well known, however, is that the investment shortfall is frequently not for a lack of funds or technology. The money may be available, particularly in the private sector, but not enough of it is going where Asia needs it. And this is because many developing countries lack the knowledge and capacity to design and implement bankable infrastructure projects that integrate new technologies.
To encourage private sector investment in infrastructure, high-quality bankable projects must adopt current levels of proven technology as well as be “future-proofed” to further advances in technology.
Delegates from across the development spectrum — from government through the private sector — will gather on Oct.13 in Bali for the Global Infrastructure Forum 2018 to discuss several trillion-dollar questions. How can governments and the private sector help fill the infrastructure gap? How can authorities’ better pair the world’s big investors with the many inclusive, resilient, sustainable, and technology-driven infrastructure projects this region needs to advance economic progress? And how can multilateral development banks best help?
To be sure, strong infrastructure projects are going up all over Asia. Take Indonesia, the Forum host; the country has made enormous strides under its ongoing and ambitious infrastructure program.
The country has seen progress: from the trans-Papua road project in one of the country’s most remote and underdeveloped regions to better information and communications technology under the Palapa Ring (satellite) Project. Indonesia has also launched innovative and clean energy projects such as the 72-megawatt Tolo wind-farm in South Sulawesi and massive urban infrastructure to boost Jakarta’s livability and competitiveness. This latter project includes a new modern airport terminal, rail link, and the first phase of the mass rapid transit expected to open in 2019.
Knowledge is crucial to get such projects off the ground, and this is where the multilateral development banks, including ADB, can assist.
The development banks are providing governments financial and technical support to enhance knowledge in numerous areas.
ADB is also helping strengthen government and private sector project development and governance capacity, for instance, for preparing high-quality projects able to support private finance. It also established the Asia Pacific Project Preparation Facility, a $73 million multi-donor trust fund to support project preparation, monitoring, and project restructuring, as well as capacity building and policy-reform initiatives linked to specific projects.
In addition, the organization is promoting public-private partnerships, catalyzing regulatory reforms to make infrastructure more attractive to private investors, and encourage more bankable projects. Potential is vast, in that pension funds alone, which hold $7.8 trillion in assets, are estimated to invest only about 1 percent of funds under management in infrastructure.
A recent ADB report, “Closing the Financing Gap in Asian Infrastructure,” notes that the richer Asian economies, such as Japan — where savings rates top 30 percent — can clearly play a stronger role if it only could. Yet, the country still invests almost $4 trillion in portfolio assets outside Asia.
Likewise, ADB is developing alternative financing structures and is backing green finance to encourage a bankable green finance project pipeline that can access funds from commercial and institutional investors. Many major investors are now strictly subject to environmental, social, and governance requirements in their investment decisions.
Finally, as technology rapidly evolves, particularly digital, it is creating substantial opportunity. Land acquisition, for example, significantly delays infrastructure projects across the region. Digital technologies are therefore being tested in several countries and watched closely for an ability to improve land titling. Likewise, ADB is involved in Spatial Data Analysis Explorer to help in decision-making relevant to climate hazards and resilience across urban systems.
Multilateral development banks can play multiple roles, from assisting and advising on the creation of appropriate legal and regulatory frameworks, developing bankable projects, direct financing or providing credit enhancement tools to finance projects, to structuring innovative “blended finance” solutions in circumstances where the underlying project is incapable of supporting a financing structure priced at commercial funding rates. In all of this, multilateral development banks and other development partners can assist developing countries gain the knowledge to better develop sustainable, accessible, resilient, and quality infrastructure.
Prema Gopalan Honoured as India Social Entrepreneur of the Year 2018
The Schwab Foundation for Social Entrepreneurship, in partnership with the Jubilant Bhartia Foundation, announced Prema Gopalan of Swayam Shikshan Prayog (SSP) as India Social Entrepreneur of the Year (SEOY) 2018. The award honours her exceptional contribution in revitalizing rural economies by empowering women to succeed in remote and ailing markets. The SSP model comprises four ventures: a federated network of 5,000 self-help groups; a resilience fund for women-led businesses; a rural school of entrepreneurship and leadership for women; and a market aggregator that provides warehousing, branding, marketing and distribution services to last-mile business women. In addition, it has catalysed the government, investors, financial institutions and Indian and global corporations to partner directly with grassroots women business leaders.
Over two decades, this has had a domino effect in 2,000 climate-threatened villages across six states of India. Over 97,000 women in drought and flood-affected villages have set up enterprises in clean energy, sanitation, basic health services, nutrition and safe agriculture. They have transitioned from self-employment to diversify their ventures, aggregate into value chains and mentor thousands of others to get on the path of entrepreneurship – 900 women are recognized locally as climate resilience leaders and 500 are playing a role in local governance. SSP’s grassroots women entrepreneurs are taking their communities forward as part of their business success. As SSP partners with the government to scale its model, it is demonstrating that investing in rural women entrepreneurs can be a solid strategy for transforming India.
Smita Ram and Ramakrishna NK of Rang De were also selected as finalists for their work on unlocking unusual channels of capital for India’s poorest, building bridges between India’s credit-starved communities and ordinary citizens who contribute to meet the education, health and enterprise needs of resource-poor populations. Working on the premise of “micro-investment for micro-loans”, this peer-to-peer lending platform has to date disbursed INR 70 crore from 14,000 social investors and philanthropists to benefit 60,000 families.
“The World Economic Forum has long championed gender equality on the global agenda,” said Hilde Schwab, Chairperson and Co-Founder of the Schwab Foundation for Social Entrepreneurship. “The 2018 winner, Prema Gopalan of Swayam Shikshan Prayog, has demonstrated that investing in rural women is a good investment. Female entrepreneurs are critical actors to help bring about the transformation that India seeks!”
Congratulating the winner, Shyam S. Bhartia, Founder and Chairman, Jubilant Bhartia Group, and Founder Director of Jubilant Bhartia Foundation, said: “We are entering the tenth year of partnership with the Schwab Foundation. In the last nine years, we received more than 1,400 applications for this award. The response is indeed overwhelming and the quality of the applications very competitive. We are glad to see how the SEOY India Award is able to identify and bring to the forefront the enterprises who are achieving social impact at a larger scale. We hope that this year’s SEOY India Award winner will serve as an inspiration to future generations of social innovators.”
The SEOY India Award brings some of the country’s most remarkable change-makers on to a common platform. These social entrepreneurs are promising self-starters, with a strong inclination towards addressing the most pertinent needs of marginalized communities in scalable and sustainable ways. Their endeavours encapsulate alleviating poverty, hunger, gender inequality, promoting women empowerment and education. These social entrepreneurs are torch-bearers who have taken the onus of working towards managing micro-finance needs and finding solutions to daunting challenges like climate change. The tenets of this year’s finalists are aligned with the United Nation’s Sustainable Development Goals.
The winner will be invited to join the Schwab Foundation’s global community of over 350 social innovators. Social Entrepreneurs are driven by their mission to create substantial social change and promote inclusive growth, developing new products and service models that benefit underserved communities.
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