REGULATIONS AND PUBLIC PERCEPTIONS IMPACTING OFFSHORING ANDNEARSHORINGBPO TRANSFORMATION ROUNDTABLE, WEDNESDAY, 16TH MAY A...
Framework for Offshoring/Nearshoring • More offshore than nearshore focus • General regulatory landscape • HR regulatory l...
Offshoring/Nearshoring: General Regulatory Landscape • Sector regulation:   • financial services, e.g. Basel III, USA prop...
Offshoring/Nearshoring: HR Regulatory Landscape • Acquired Rights Directive (ARD) 2001/23 as implemented throughout EU:   ...
Offshoring/Nearshoring: Politics • Supranational, national, regional, local levels • No EU supranational, regional or loca...
From the other side of the Atlantic…. • President Obama, State of the Union, January 2012:     “We have a huge opportunity...
Offshoring/Nearshoring: Protectionism •      “Macro” v “micro”, e.g. control of labour movement v        offshore-inbound ...
Offshoring/Nearshoring: Perceptions I • Broad public opinion and occasional business executive surveys,     but scant rese...
Offshoring/Nearshoring: Perceptions II • Ovum, CRM Business Trends 2011, Ryan, OI00145-023:   • Survey of 200 senior execu...
Offshoring/Nearshoring: Impact    • Impact seen in “reshoring”/”reverse offshoring”:        • UK: July 2011 Santander resh...
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Sson amsterdam may 2012 roundtable - mark lewis berwin leighton paisner

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  • Financial Industry Regulatory Authority (FINRA): US securities regulator proposed FINRA Rule 3190, Use of Third-Party Service Providers, which emphasises initial and continuing third-party due diligence, on-point contract terms, compliance with existing and specific function-related regulations and oversight control. Accordingly, procedures will need to be established for the continuous monitoring requirements. Also, it will be necessary to revisit existing contract terms and make sure that they comply with 3190’s requirements.
  • Edinburgh City Council case 20 January 2012, Edinburgh pulls major outsourcing project. Mitie had been appointed preferred bidder for £30m to £50m a year, 7-year, contract, which included school dinners, administrative work and the local authority’s help desk. 2000 jobs would have transferred to Mitie under TUPE. The contract was thought to have assured savings of more than £51.5m over the life of the contract. Trade union opposition. Labour and Scottish National party councillors united against the agreement. The work will now stay in-house. Andy Brown, analyst at Panmure Gordon, the brokerage, said the decision could prove a “red flag” that hostility to privatisation was growing, especially if other local authorities were to follow suit. “My worry is it might become a wider issue and if did it would knock a hole in order books, put a question over pipelines and put the support services sector under pressure.”: see http://www.ft.com/cms/s/0/e8677a74-4386-11e1-9f28-00144feab49a.html#axzz1nAYIleLI
  • Offshoring Prevention Act: introduced January 2011 by Senator Whitehouse, but made no progress and unlikely to get anywhere. Its purpose was to "amend the Internal Revenue Code of 1986 to provide for the taxation of income of controlled foreign corporations attributable for imported property." The Outsourcing Accountability Act of 2012: introduced on February 1, 2012 and proposes to amend §13 of the Securities Exchange Act of 1934. It will require that each issuer file annual reports with the Securities and Exchange Commission disclosing to the Commission and shareholders the total number of employees in the United States, the total number in each state, and the total number physically working in any country other than the United States. The Rebuild America Act : introduced April 2012 by Senator Harkin. The bill requires ending tax breaks that reward the offshoring of jobs. United States Call Center Worker and Consumer Protection Act: proposed in December 2011. Among the more draconian provisions is the cataloguing of all firms that are moving agent positions overseas in order to disqualify them from federal loans and loan guarantees for five years. This is in addition to requiring any firm that plans to move contact centre operations overseas to give 120 days' notice to the US Labor Secretary (with failure to do so meaning a penalty of $10,000 per day for late notification). In addition, agents overseas would be forced to inform callers of their location and offer the option of a US-based agent. It is considered unlikely to pass. Ohio State: in September 2010 the US state of Ohio banned outsourcing of government IT and back-office projects to offshore locations such as India, raising fears of similar moves by other American states struggling to cope with high unemployment rates.
  • “ Reshoring” or “reverse offshoring” situations of note A July 2011 FT article reported that Santander has abandoned using call-centre workers in India to deal with British customers after being flooded with complaints. The bank revealed that the lines to its outsourced centres in Bangalore and Pune were closed down on July 1 and that all calls were being answered by staff based in Britain. Over the past six months, the bank has added 500 workers to its main call centres in Glasgow, Leicester and Liverpool, boosting their numbers to 2,500. From a June 2011 FT article: United Utilities is among recent examples of private sector companies that have reversed earlier offshoring decisions by returning call centre work to the UK. The decision to bring the work - which had been handled from the Philippines under contract by Accenture - back in-house has boosted employment at UU's offices in Warrington and Whitehaven in North-West England. Russ Houlden, UU CFO, says a review of United's debt collection strategy had prompted the move - and a recognition that local staff were best positioned to deal efficiently with customers with genuine problems in meeting their bills. General Electric announced in 2010 that it was moving some of its appliance manufacturing from China to Louisville, Kentucky. NCR Corp. is pulling all of its ATM machine production from China, India, and Hungary back to a facility in Columbus, Georgia, in order to customise products and get them to clients faster. In their announcements, both GE and NCR emphasised that, by being closer to the market, they can better understand the market and are able to respond quickly to market changes.
  • Sson amsterdam may 2012 roundtable - mark lewis berwin leighton paisner

    1. 1. REGULATIONS AND PUBLIC PERCEPTIONS IMPACTING OFFSHORING ANDNEARSHORINGBPO TRANSFORMATION ROUNDTABLE, WEDNESDAY, 16TH MAY AT 2:50PMMark Lewis Partner, Head of IT & Outsourcing mark.lewis@blplaw.com
    2. 2. Framework for Offshoring/Nearshoring • More offshore than nearshore focus • General regulatory landscape • HR regulatory landscape • Politics • Protectionism • Perceptions • Impactwww.blplaw.com Page 2 © Berwin Leighton Paisner
    3. 3. Offshoring/Nearshoring: General Regulatory Landscape • Sector regulation: • financial services, e.g. Basel III, USA proposed FINRA Rule 3190 • healthcare, utilities, EU digital society, etc. • Foreign regulation where applicable, e.g. US HIPAA • Public procurement rules where public sector involved • Data protection and privacy • personal data: employees, customers and other living individuals • corporate data in some countries, e.g. Austria, Switzerland • cross-border data flows • intra-group data flows and use of EU Model Clauses (if approved locally) • each country has implemented somewhat differently • proposal for a new data protection framework for the EU introduced on 25th January 2012 by Viviane Reding, Vice President of the European Commission • Human rights legislation applicable in EU territory • Overriding private law rights: customer agreements, confidentiality, contracts with third parties – and the proposed “right to be forgotten”www.blplaw.com Page 3 © Berwin Leighton Paisner
    4. 4. Offshoring/Nearshoring: HR Regulatory Landscape • Acquired Rights Directive (ARD) 2001/23 as implemented throughout EU: • purposive interpretation • ECJ will look through corporate structures: Heineken/Albron (C-242/09) • each country has implemented ARD somewhat differently, e.g. UK, Denmark and the Czech Republic have liberal interpretation of when ARD applies, whereas Belgium and France take a stricter view • Works Council and similar consultation/agreements • Redundancy processes • Beckmann/Martin contractual rights in pension schemes • Immigration/visa requirements for offshore staff • Cross-border/offshore outsourcing and the ARDwww.blplaw.com Page 4 © Berwin Leighton Paisner
    5. 5. Offshoring/Nearshoring: Politics • Supranational, national, regional, local levels • No EU supranational, regional or local anti- offshoring/nearshoring regulations • EU labour, trade unions and works council pressure to keep jobs local and anti-outsourcing, e.g. Edinburgh City Council outsourcing to Mitie: see http://www.ft.com/cms/s/0/e8677a74-4386-11e1-9f28-00144fe ab49a.html#axzz1nAYIleLI • Differences between the EU and the USA: since 2010 an alarming list of US proposals for new anti-offshoring laws, as well as new state lawwww.blplaw.com Page 5 © Berwin Leighton Paisner
    6. 6. From the other side of the Atlantic…. • President Obama, State of the Union, January 2012: “We have a huge opportunity, at this moment, to bring manufacturing back….We should start with our tax code. Right now, companies get tax breaks for moving jobs and profits overseas. Meanwhile, companies that choose to stay in America get hit with one of the highest tax rates in the world. It makes no sense, and everyone knows it. So let’s change it.” • Offshoring Prevention Act • The Outsourcing Accountability Act of 2012 • The Rebuild America Act • United States Call Center Worker and Consumer Protection Act • State of Ohio anti-offshore outsourcing lawwww.blplaw.com Page 6 © Berwin Leighton Paisner
    7. 7. Offshoring/Nearshoring: Protectionism • “Macro” v “micro”, e.g. control of labour movement v offshore-inbound immigration policies and visa controls • B-1/H-1B/ICT Visa and immigration processes still a concern for Indian IT and outsourcing industries (not helped by Infosys whistleblower case) • Pressure from local trade associations, e.g. UK IT consulting organisationswww.blplaw.com Page 7 © Berwin Leighton Paisner
    8. 8. Offshoring/Nearshoring: Perceptions I • Broad public opinion and occasional business executive surveys, but scant research • Rise of economic insecurity clearly critical in perceptions of offshoring: Actual and perceived effects of offshoring on economic insecurity: The role of labour market regimes, Milberg & Winkler, 2011, published by the WTO • September 2010 Wall Street Journal/NBC News Poll: 86% of those surveyed said outsourcing of jobs by US companies to low-wage foreign countries contributed to economic sluggishness http://online.wsj.com/article/SB20001424052748703882404575520091126205702.htmlwww.blplaw.com Page 8 © Berwin Leighton Paisner
    9. 9. Offshoring/Nearshoring: Perceptions II • Ovum, CRM Business Trends 2011, Ryan, OI00145-023: • Survey of 200 senior executives in North America, Europe and Australia Q3 2011 across 9 vertical markets • Overwhelming majority view was that offshoring is not a viable delivery model in CRM, mainly because of perceived lack of security and data protection and, in the case of India, accent and linguistic problems • More widely held view that economics of offshore outsourcing unsustainable: • 2007 – 87% of US and European companies achieved cost savings from offshoring of at least 10% • 2010 – 58% of US and European companies achieved cost savings from offshoring of at least 10% Robert H. Brown, Gartner VP Research, BPO, quoted in the Financial Times, London, June 29, 2011www.blplaw.com Page 9 © Berwin Leighton Paisner
    10. 10. Offshoring/Nearshoring: Impact • Impact seen in “reshoring”/”reverse offshoring”: • UK: July 2011 Santander reshores call centre from India to Britain • UK: June 2011 United Utilities reshores call centre work from Philippines (by Accenture) to the UK • USA: 2010, GE reverse offshores appliance manufacturing from China to Louisville, Kentucky • USA: 2011, NCR Corp. reverse offshores ATM machine production from China, India, and Hungary back to facility in Columbus, Georgia, USA • Discernible trend in impact? External CRM, contact centre and voice operations always the most sensitive to offshoringwww.blplaw.com Page 10 © Berwin Leighton Paisner

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