Contract Management

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006, Dr. Sandi M. Smith, Director of Institutional Relations, Global Learning Semesters, Inc.

Legal liability is often used as a weapon to guard off the timid or defend the brave. However, many staff and faculty involved in study abroad programs do not have a notion of what legal liability is and how it should guide the design and maintenance of every study abroad program.

The following article is a layman’s introduction to complicated legal principles and precedence related to the administration of study abroad programs. Clearly, it is necessary to deliver a disclaimer… the information herein is not intended to substitute for competent legal representation. The following description of legal liability is for informational purposes only. The concepts discussed here can be helpful in guiding questions for your institutional and personal legal counsel.

Liability as a legal doctrine makes a person responsible for the damage and loss caused by his/her acts and omissions regardless of culpability (culpability is a measure of the degree to which a person can be held morally or legally responsible). However, for breach of contract or a tort, culpability may increase the measure of damages payable to compensate the plaintiff.

Sources of Liability

It does not matter our legal vocabulary and understanding, liability is something in which we are all obligated. Based on various established legal theories and precedence, duties and responsibilities are imposed on us and can carry an obligation of compliance.

The four main categories of legal liability relevant to the administration of study abroad are:

• tort law
• contract law
• criminal law
• federal law
• immunities
• professional regulation

Tort Law

Strict liability often applies to those engaged in hazardous or inherently dangerous ventures. The law imputes strict liability to situations it considers to be inherently dangerous. It discourages reckless behavior and needless loss by forcing potential defendants to take every possible precaution. It also has the effect of simplifying litigation and allowing the victim to become whole more quickly. According to strict liability, the plaintiff needs to prove only that the tort happened and that the defendant was responsible. Neither good faith, nor the fact that the defendant took all possible precautions are, valid defenses.

Tort law is focused on negligence for which damages may be awarded. Common tort liability is commonly measured by this question:

“Would a reasonable person have known or should have foreseen the risk or harm?”

To prove negligence, the injured party must prove,

1) the existence of a duty which the offender did not meet, and

2) that the effect of that specific failure resulted in injury to the plaintiff.

A few of the “duties” relevant to study abroad administration are:

Special relationship

In loco parentis is practiced to different levels at different types of campuses. For example, a church-related institution with strict behavioral codes invokes a higher standard of in loco parentis than a state-funded university. Yet, most institutions do not assume the responsibility of in loco parentis. However, it is commonly accepted among international educators that we are held to the expectations of “special relationship”, in which a duty of care is imposed because of special circumstances. Because there are more unknown factors involved in an international experience, there is a relative dependence of the student on the sponsoring institution. Thus, educators and administrators familiar with the expectation of treating college students as adults, must re-evaluate so me responsibilities when related to international programs.

Landlord relationship

Legal duties may be assumed of the property on which international programs are conducted. Although the program sponsor may not be the owner of the facilities, and it is not reasonable to expect that foreign landlords have the same standards as we do for students in the U.S., the sponsor assumes the duty to ensure reasonable standards. This includes duty to maintain the premises, provide adequate security, and warn of potential hazards.

Reasonable person standard

It is fair to assume that the courts will look to impose liability where sponsors/institutions, have not been prudent or demonstrated good faith in the care of those with whom they serve. However, the fundamental precept of negligence that the law will look to determine is “what a reasonable person under the circumstances would have done.”

Contract liability

Contractual understandings that may be written or oral. Unlike tort liability, contract liability is not imposed according to a duty, nor on the basis of what a reasonable person would do. Rather it is clearly an issue of “what does the contract say?” Thus, parties can control liability according to the agreement they come to. Obviously a written contract can be proven more substantially than a verbal contract. And reliance on a verbal promises outside of a written contract are not usually admissible.

Printed/media informational materials

Contracts can be created outside of a signed document. Colleges and universities have been found to be liable for representations in catalogues and other printed materials. Thus, pamphlets, flyers, brochures, letters and even websites are enforceable.

Signed agreements and contracts

Obvious reliance is placed on signed contracts and agreements. Weather it be pre-approval of transfer of credit or contracts for bus transportation, these contracts are meant to protect both parties. The more precise the terms of a contract, the m ore common understanding exists between parties. Most institutions have rules about who has the authority to sign contracts. Thus, when developing forms related to international study, it is important to have legal counsel and senior administration decide who has authority over specific types of signed agreements. Similarly, many institutions have policies and procedures about procurement contracts and thus, if an international program needs to sign contracts for transportation, housing, insurance, etc. there should be institutional policies for vetting and authorizing these contracts.

Federal Law

Federal law, in most cases, does not reach outside the U.S. Thus, returning to the special relationship precept,, international programs may technically be liable for maintaining standards of U.S. Federal Law as much as is reasonable. Furthermore, international programs will be under jurisdiction of the Laws of the host country. Some of the federal laws that have relevance to international programs are:

- civil rights

- FERPA

- Campus Security Act

- Drug Free Schools Act

Criminal Law

Obviously, those participating in and administering study abroad programs are subject to criminal law. The most important factor to realize with criminal law is that participants and administrators are subject to local and national law in the U.S. and ALSO subject to criminal laws of the host country and any country visited along the way. The U.S. Embassy in foreign countries is a good source or information for understanding relevant host country laws. OSAC, Overseas Security Advisory Council provides relevant information at: http://www.osac.gov/. Legal protections in the U.S. are not applicable to foreign countries. And the “I did not know” defense will not protect you. Some of the criminal laws relevant to study abroad are:

- vandalism

- assault and battery

- murder

- robbery

- drugs and alcohol

- political speech

- vehicle operations

Immunities

Immunity from prosecution is offered to those employed by a public institution and may apply to certain circumstances within the responsibilities of an international program. Sovereign Immunity established by the Eleventh Amendment of the U.S. Constitution basically bars suit in federal court against entries or agents acting in an official state capacity. However, this does not absolve institutions and employees of prosecution for negligence.

Program Sponsorship

It is commonly referred to as “deferred risk” when turning over students to a third-party program provider. Many institutions, realizing that they do not have the staff and resources to provide the best standard of care and expertise to study abroad programs have wisely deferred the risk of liability to a program sponsor. A deferred program sponsor may be another U.S. college or university operating international programs or an independent study abroad organization. Entering into an exchange agreement or direct enrollment agreement with a host institution does no defer risk of liability.

Legal principles for managing study abroad programs are similar to the standards used at home. Institutions are expected to “understand the nature of the program activity so that the educational benefits can be measured against the risk of harm.” (Weeks, pg. 3) Program sponsorship should be reserved for those with expertise to provide the expected duty of care, including:

• faculty and administrators should possess adequate expertise in the site location (language, culture, laws, social standards, political status, geographic and climatic issues, crime and safety, emergency resources),
• the distinct components of a program should be clearly articulated and assigned to responsible staff (faculty may be experts on the language or academic content, but not adequately trained to respond to student conduct issues, or housing safety, or emergency response),
• responsible staff are sufficiently trained and accountable for the performance of their assigned duties,
• adherence to safety standards when structuring the program, negotiating contracts, and facilitating student interactions,
• responsiveness to incidents and emergencies

Another function of program sponsorship is eminent domain. What laws and jurisdiction apply to any prosecution that might occur?

Program Structure/Risk Management

Offering a course at an international location does not inherently create a higher risk. However, there are risks inherent to some international locations, and obviously to inexperienced travelers. Studying in a classroom or library in London is not inherently more risky than in the U.S., and filed experiences in archeology will inherently have more risk in the U.S. or abroad than studying in the library. Program structure and risk management should take into consideration some of the factors that do make study in another country more risky including:

• language
• laws and cultural customs related to alcohol consumption
• traffic patterns and laws
• social customs and interactions
• safety standards of buildings, walkways, vehicles
• public health and safety
• travel-related and site-specific high risk activities

Resources:

Association of Safe International Road Travel: http://www.asirt.org.

Consular Information Sheets: http://trave.state.gov/travel/cis_pa_tw/cis/cis_1765.html

NAFSA Responsible Study Abroad:

http://www.nafsa.org/knowledge_community_network.sec/education_abroad_1/education_abroad2/practice_resources_12/health_safety/guidlines_for_health

SAFETI Clearinghouse: http://www.globaled.us/safeti/

IES Map: http://www.iesabroad.org/iesMap.do

U.S. State Dept. Travel Resources: http://www.state.gov/travelandbusiness/

Worldworx Travel Safety: http://wwww.worldworx.tv/safety/

Duty to Advise

A serious responsibility of any college or university is the function of academic advisement. More resources are being assigned to student advisement whether through faculty advisors and/or professionally trained advisors. With this increased recognition of a duty to advise, it is expected that colleges must provide the same level of informed and thorough advisement and orientation for students selecting international programs. The duty to advise encompasses choosing a program, academic structure, host country, eligibility requirements, cost, application procedures and deadlines, pre-departure orientation, conduct expectations, waiver of rights, credit transfer, financial aid, transition adjustment, and more.

Disclosure of known risks is expected. A duty of care includes:

• known or expected political, social, terrorist risk
• assessment of crime
• road, traffic and vehicle conditions
• health risks
• cultural and legal differences
• independent travel
• past incidents of students and staff
• local informants
• encourage questions and provide responses

Student Misconduct

The duty to advise must clearly cover behavior and conduct expectations of students. Depending on program sponsorship, a student should know if he/she is accountable to home-campus conduct and disciplinary standards, or does the sponsoring agency supplant home-campus policies?

Furthermore, it must be clear as to the expectations for “off-campus” conduct while participating on an international program. What is considered “off-campus” while on a program abroad: is the program housing off-campus, are group meals considered off-campus, and is weekend travel considered off-campus? An example of a U.S. campus issue is alcohol consumption in the students’ residence. Some campus residences may have rules prohibiting alcohol consumption, yet public institutions would not expect to prohibit alcohol consumption in off-campus apartments (some private institutions do have general alcohol consumption policies and attempt to prohibit it at any time on and off campus). Thus, is sponsor-provided housing on an international program considered on or off-campus?

Due process is another issue that is sometimes blurred on a Study Abroad program. It is fairly uncommon to have qualified staff to investigate student misconduct allegations, and provide due process that is expected on the home campus. Thus, it must be clearly stated that students will either waive due process or experience an abbreviated version of due process in academic and/or conduct issues while abroad.

Students should also be informed if they will face home-campus disciplinary sanctions for conduct infractions while aboard. If there are exceptions to home-campus conduct (particularly drinking age), students should understand the policies as they apply to study abroad.

Students should be informed that they are subject to local and host country laws and should not assume that those laws are the same as U.S. laws (especially regarding public intoxication, traffic offenses, drug possession, use and sales, and sexual misconduct).

Federal Statues

The following federal statues can be applies to education abroad:

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate in employment based on race, color, religion, sex, or national origin.

Title IV of the Civil Rights Act of 1964 makes it unlawful for programs that receive federal funding to discriminate based on race, color, religion, sex, or national origin.

Title IX of the Education Amendment of 1972 make it unlawful for programs that receive federal funding to discriminate on the basis of sex.

Age discrimination in Employment Act of 1984 makes it unlawful to discriminate in employment based on age.

Campus Security Act of 1990 (Clery Act) does not contain any clear indication that it is intended to apply outside the U.S. boundaries, unless specifically a branch campus. However, in the duty to advise, it is expected that institution swill maintain data on incidents and disclose as appropriate.

Drug-Free Schools and Communities Act Amendments of 1989 are tied to federal funding. So the argument can be made that if any federal financial aid might be used for a program, it is required that the same requirements apply.

Family Educational Rights and Privacy Act of 1974 (FERPA or Buckley Amendment) It is not possible to dictate the policies and procedures of foreign institutions, however, it is necessary to understand the foreign institution’s policies and procedures. FERPA standards of care in confidentiality management should be taken by U.S. representatives.

Rehabilitation Act and Americans with Disabilities Act (ADA) is not intended for overseas institutions, however, most colleges continue to serve students where reasonable accommodations can be made. And some foreign host institutions now apply a similar standard of care in making reasonable accommodations for students and employees with disabilities.

Crisis Management

Every campus is expected to have a crisis response plan, and thus has an outline and structure that can be translated to overseas programs. It is reasonable to expect that any institution sponsoring international activities will make proactive efforts in crisis management and response planning.

Summary

Legal liability is created by the violation of duties imposed by the 1) common law, 2) statutory law (state and federal), and 3) contract law. And despite the complexities of the law there are some fundamental precepts that can protect an institution involved in study abroad:

1. assume there is a duty to act reasonably and foresee and limit the exposure to risks which are known or should be known, and act accordingly.

2. make certain that all substantive aspects of programs are fully described in writing and that program participants receive, and understand all of the materials.

3. prepare and use an assumption of risk document appropriately.

4. ensure that all participants possess adequate insurance for every reasonable contingency.

(Weeks, pg 67)

This document is a summary of legal liability related to study abroad programming. If legal advice or other expert assistance is required, the services of a competent professional should be sought.

Sources

Kaplan, William A. 1990. The Law of Higher Education. Jossey-Bass Publishers.

Weeks, Kent M. 1999. Managing Liability and Overseas Programs. College Legal Information, Inc. Nashville, TN.

Dr. Sandi M. Smith
http://www.articlesbase.com/international-studies-articles/legal-liability-relevant-to-study-abroad-736032.html

For successful implementation, like any other business process, offshore outsourcing needs a well-developed strategy. In this article we tried to write the key aspects to be taken into account while developing an offshore outsourcing aspect.

To create an effective offshore outsourcing strategy management should perform the following 7 steps:

1. Strategy analysis: Objectives and Scope.

During this step you should decide whether offshore outsourcing is the right way for your company, what problems you expect to eliminate by going offshore and define the scope of the project (pick the process to offshore, define the process scope and expected ROI).

2. Create the offshore delivery model

At this stage you will have to think over following aspects:

1) The relationship decision: Build vs Buy vs Lease:

You will have to decide what relationship will connect you and your vendor: whether to build your own operation offshore, or buy into an existing one or create a sourcing relationship. Here is the list of existing offshore outsourcing business models (more detailed description of these models you will find in our upcoming articles):

- Global Delivery Model

- Hybrid Outsourcing

- ODC

- Captive Shared Services

- Build-Operate-Transfer

- Offshore Multisourcing

2) The location decision:

Offshore operation location is a critical aspect. Every location has a certain risk. When choosing a location for your offshore business, evaluate the country basing on following criteria:

- Distance

- Time zone difference

- Cultural differences

- Language barriers

- Quality of suppliers

- Legal framework

- Geopolitical stability

3) Governance decision

Your way or the vendor’s way? You’ll have to decide who will take the major part of management of the project: you or the service provider.

4) The vendor decision:

Create request for proposal and evaluate proposals from potential service providers.

3. Negotiate the offshore contract.

All services and costs must be clearly defined and the contract must be carefully worked out.

1) General Contract and Financial Framework

- Flexibility

- Price

- Price stability (in long-term agreements discuss annual percentage change before signing the contract)

- Hidden costs (discuss hidden costs before contract signing)

Reserve 5%-15% of your total budget for the internal management team (extra expenses such as time and travel)

- Quality

- Deadlines

- Payment terms

- Conflict resolution

- Term expiration and renewal

- Statement of work

- Performance measurement

- Service Level Agreement

2) Legal framework

Legal aspects of the contract are not less important than the financial. Pay attention of the following items:

- trade secrets and intellectual property protection

- Ensuring the security and privacy of your data

- Be aware of local regulations, such as labour and taxation laws

- Responding to a vendor that fails to perform its duties

- Termination of relationship

4. Design Service Level Agreement (SLA).

Elements of SLA:

- Start and end dates of the service

- Schedule for reviewing performance

- Documentation to be used in measuring the service level

- Types of service levels expected by customers and end users

- Measurements of the service levels?

- Measuring period

- Minimum quality of work

- Provisions and penalties for over- and underperformance

5. Manage the transition

This stage is probably the most difficult. There are many issues to consider. Here are the key aspects of this step.

1) Knowledge transfer between organizations. This is the task of bringing vendor’s employees up to speed on your process and procedures. Before you start transferring knowledge, you have to decide what knowledge should remain in-house and what should be transferred.

2) Communication management. There are two types of communication management: strategic and operational.

- Strategic communications apprise all employees within your company of your offshore outsourcing intentions and the reasons behind them.

- Operational communications are the day-to-day communications between you and the vendor. You will need to develop a plan that addresses such issues as the time, language and cultural differences, whether videoconferencing possibility exists, and when to schedule status meetings.

3) Employee management: redeploy, transfer or let go.

4) Quality management during transition

The contract should fulfill objectives for which the business was undertaken.

To guarantee quality many companies are emphasizing certifications (e.g. ISO 9001).

6. Manage the relationship for maximum value

Governance is an aspect of offshoring that can make or break the project.

Three levels of governance:

- Strategic level – aligning of the processes, projects and goals with business requirements.

- Program office – best practices benchmarking, vendor evaluation, project priorities and milestones.

- The operational level – day-to-day management of offshore projects.

7. Measure performance improvement.

- Continuous performance reports

Auditing. Here are some questions to answer:

1) How is performance monitored and reported?

2) Who is responsible for reporting?

3) What are the time frame, content and format of standard reporting?

4) Are SLA deadlines being met and adhered to?

5) Is reporting timely and accurate?

6) Is the quality of work consistent with the defined SLAs?

7) Invoice checks – is the number of people on the project accurate?

Does the vendor have valid software licenses in place?

- Continuous learning and recalibration

Many companies prefer to wait until outsourcing processes are settled down before entering of phase of re-engineering using management methods such as Six Sigma. During this phase you should analyze and give answers to following questions.

1) How much did my organization gain from offshoring?

2) Which offshore operations, data or activities are not performing according to plan?

3) How is our current business model – captive centre, sole sourcing, or multi sourcing – performing?

Keep in mind that successful offshore outsourcing relationships must be win-win situations for both clients and vendors.

The source for the article: Offshore Outsourcing. Business Models, ROI and Best Practices by Marcia Robinson, Ravi Kalakota.

http://www.ainstainer.com/

Darya Zinatulina
http://www.articlesbase.com/outsourcing-articles/how-to-create-effective-offshore-strategy-730278.html

The top employment agencies in U.S of America are given here.

Ranking of the best US employment agencies was based on revenue. The complete portfolio of each agency includes location and the services they offer.

Here are the top employment agencies in U.S of America:

Hudson Global Resources – A division of Hudson Highland Group, Inc. Their vision, “To be the world’s best at helping employers achieve success through people”. They have expertise in staffing and consulting services particularly permanent & contract professionals, outsourcing solutions and talent management.

Kforce Inc. – Located in Tampa, Florida and operates in 67 offices. Kforce Incorporated specializes in staffing services. They positioned highly skilled employees in firms that need them. Kforce serves FORTUNE 1000 corporations, even the small and midsize firms for over 40 years now. Furthermore, they have a web-based service that includes on-line resumes and job vacancies. They believe that great people add up to great results.

9008 Group Inc. – A private company that started in 1978 situated in Torrance, California. A company that does employment placement, administrative & general management, consulting services, management support services, business facilities oversight, business administration services, business intelligence consulting services, project management, industrial management and management advisory services.

Westaff, Inc. – Located in Walnut Creek, California, Westaff has been in the industry for over 60 years with more than 15,000 clients. They’re offering staffing services, professional recruiting, on-location staffing services, talent trak (in-depth behavioral and skills assessments) time trak (web-based workforce management program), payroll services, e-procurement and special projects. They operate in 209 offices throughout the United States, United Kingdom, Australia and New Zealand.

Heidrick & Struggles International – Established in Chicago, Illinois, existed for more than 50 years catering to temporary placement, management assessment, and professional development services. They are the leader in executive search industry. Primarily, they provide incomparable service and expertise to bring effective leadership solutions for clients.

Driving Momentum Inc. – Centered in Dallas, Texas, the company started in 1996. A very supportive and receptive company, it works round the clock, 24/7 to meet the requirements of its customers. If in need of professional and best drivers anytime, Driving Momentum is the answer.

Vedior North America, Llc – started 1994, the headquarters is located in Wakefield, Massachusetts. Formerly known as New Boston Group of Companies, the group was bought in 1994 by the UK-located recruitment company Select Appointments (Holdings). Their services include a broad range of staffing services. A staffing solutions to Traditional, Light Industrial Administrative sectors and also Specialist sectors like Healthcare, Information Technology, Engineering, Accounting, and Education. Vedior believes in excellence and innovation in their recruiting practice.

Chg Healthcare Services, Inc – Started in 1979, CHG is one of the pioneer and largest source of healthcare staffing in the United States. They provide a comprehensive service that includes temporary and permanent placement of physicians, health professionals and nurses to hospitals and healthcare firms.

CoWorx Staffing Services, Llc – formerly known as Pomerantz Staffing Services, offers employment services, employee recruiting, temporary staffing solutions, temporary employment, human resources recruiting, on-line recruiting, direct hire/executive recruitment and payroll services since 1974. Their main office is located in Watchung, New Jersey. They credit their success to their unparalleled commitment to people, their clients and their employees.

Odyssey One Source Incorporated – situated in Euless, Texas; operations started since 1990. An individual outsourcing firm that offers answers pertaining to human resources, risk management, payroll, taxes, benefits and training.

Christa Kowalczyk
http://www.articlesbase.com/business-articles/the-top-ten-employment-agencies-in-the-usa-555704.html