Rise of International and Multijurisdictional Workforce Issues

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Darren Gardner, a pioneer in the area of international employment law, joins IMS Insights Podcast to share his thoughts on helping companies manage an increasingly global workforce. Darren discusses King & Spalding’s groundbreaking Global Human Capital and Compliance Practice, provides tips for navigating the complexities that can emerge with an international workforce, and identifies the new workplace innovations that he’s seeing emerge in response to the COVID-19 pandemic.

Teresa Barber: Darren, welcome. It’s wonderful to have you here. I appreciate you taking time for the conversation.

Darren Gardner: Pleasure to be here.

Teresa Barber: I want to ask you a little bit about COVID-19 and the pandemic. We know in many ways (that) it’s forced the hand of innovation, as companies and firms look forward to new ways of connecting with customers and driving business. What have you been observing? How do you think companies are innovating to keep work going right now?

Darren Gardner: I think the model that’s operated in the traditional and typical model has really had to change – and had to change quickly. (I think) most of the steps have revolved around, certainly, the adoption of technology – in particular, the use of the different platforms and collaboration tools. I also think the forced remote work has been something that has really forced everybody to modify what they do and how they do it – particularly in the short term.

Darren Gardner: Most of the innovation has been around how to get things done in an environment that people aren’t typically used to, and where they’re using technology and tools that are designed to facilitate interaction, but they’re certainly not the same as face-to-face business.

Teresa Barber: Right. Looking at some of these changes, we might’ve thought a year ago, “This is just a workaround. This is temporary.” Do you think that the pandemic has fundamentally altered the way people and companies are working?

Darren Gardner: I do. I think (it’s altered how people work) both in the short term, and I think there’s really what we are calling, as part of our Global Human Capital and Compliance practice at King & Spalding, a global transformation of the modern workplace (happening in the long term). It is not the same, and it’s not going to be the same. It’s something that filters through, not just the day-to-day workforce interactions, but also all the collateral arrangements.

Darren Gardner: The real estate requirements, the geographies, all of the services that you typically need when you’re in the office to be able (to function) – the security, the food, the catering, (it will affect) the types of things that typically you require that suddenly have gone away. Then, (it will also affect) things that you wouldn’t necessarily expect – (for instance), what types of technology requirements do you now have? How does the technology that you operate in the environment of the office work when people are remote?

Darren Gardner: I think everybody’s had to rethink (all this), really from soup to nuts. I don’t think anybody’s there yet, nor do I think that we’re close to where we’ll end up. I think it’s really bespoke, based on business requirements, to a degree, and location, but that transformation has certainly started to occur, (and) I think it’s going to continue.

Teresa Barber: Yeah. I know you’re monitoring this on a daily basis, but what other related issues are you seeing on the horizon? I want you to talk to us a little bit about why you –and why King & Spalding – made the decision to launch the Global Human Capital and Compliance practice right now.

Darren Gardner: Delighted. I think, taking the second part first, (that) King & Spalding has been a very entrepreneurial firm and has been entirely focused on staying ahead of the curve. We didn’t set the practice up as a consequence of COVID.

Darren Gardner: There’s been a huge – I think – shift in how the workforce is both valued, and how valuable it is. It’s generally the biggest cost, but it’s also often the biggest opportunity. And I think the development of those ideas around the broader internationalization of business – and I’ll talk more about some specific issues later – but the idea that there’s now a centrality to workforce issues and dealing with them in a centralized, integrated way on a global basis is something that certainly I’ve done throughout my career.

Darren Gardner: But in our conversations, as we’re looking at establishing the practice, King & Spalding really is a firm known for thinking about what’s going to happen after what happens next. A lot of those issues are around people, and that was the basis for why we did it, (and) certainly, it’s been proven out in the first year of operations. In terms of the issues and challenges – the first part of your question – that have arisen through COVID, it’s been interesting.

Darren Gardner: They really fall, I think – again, much like the global transformation, (in) the modern workplace, we’re just seeing some of these issues start to arise. I don’t think we’ve seen anything like what will happen just yet, but there’s a lot of challenges around the technology and the collaboration platforms – how people use them and what they do. There’s a lot more familiarity, I think, and probably the interactions of coworkers (have) become a lot different than (they are) when you are in an office environment.

Darren Gardner: It’s much easier to create a framework and a structure and apply rules that you expect everybody to comply with when you have a common location. When people are using collaboration tools, and they’re in groups and they’re speaking to each other in shorthand in ways where you have people in different countries, it’s really starting to lead to both cultural and compliance issues that are really tough to regulate.

Darren Gardner: Because of the speed that everybody had to react to the pandemic, and because of the nature of the change, it wasn’t something that you could really address up front. At the same time, the way that arrangements have been put in place and that they’ve operated (under) during the course of the last year or so, I think there’s a little bit of forgiveness, generally, because everybody had to get it in place. It was really about well-being and safety.

Darren Gardner: What happens as a consequence is (that) there’s a series of both management issues, I think, and compliance issues, that as we get further into it, and as the arrangements and that transformation continues to take place, we’re really starting to see – and we’re going to see more of. They’re the simple things that if you were to step back and look at the big picture, you would certainly identify – but the practicalities of doing it after it’s happened make it that much more difficult, I think.

Darren Gardner: What we’re seeing, (to give a few) examples of issues, (are things like): just how do you manage performance in particular roles in a remote environment, (when) part of it depends on personal interaction? How do you frame the use of the collaboration tools to be able to make sure that all of the things that you would normally get, with both your colleagues and customers, can be addressed appropriately? How do you address leave? How do you go on leave if you’re working at home?

Darren Gardner: In countries outside the U.S., where there are significant statutory entitlements, those accruals and those costs where you have large workforces are really material – and can be contingent liabilities that are going to have to be addressed as companies move forward. At the same time, the flip side of leave, and collateral to it, (are) working hours. What’s your ordinary day?

Darren Gardner: Your ordinary day used to be defined by when you’re in…

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