by Ellen Peralta:
This post is a synopsis of the recent publication, “Can You Get Sued? Legal liability of International Humanitarian Aid Organizations Towards Their Staff,” by Edward Kemp and Maarten Merkelbach, of Security Management Initiative (SMI).
The paper highlights the legal obligations owed to employees of international Non Governmental Organizations (NGOs). In their discussion, they demonstrate that although NGOs seemingly exist in a legal gray area, an employee of an NGO merits the same legal rights as employees of any other enterprise.
Non Governmental Organizations, in both the humanitarian and development sectors, work around the globe to improve the welfare of their target beneficiaries. Structurally, NGOs operate not unlike most enterprises, with the notable difference being that NGOs are non-profit organizations. Despite their status as non-profit organizations, NGOs still share the same amount of legal responsibilities towards their employees as any other enterprise.
NGOs, because of a lack of international standards for work practice for aid organizations, tend to self-regulate their guidelines on employee welfare. Such welfare concerns, including risk management and duty of care, are generally approached as a matter of choice or conscience, open to various interpretations and oftentimes treated as voluntary. Employee welfare from a legal perspective, whether for NGOs, other non-profits, or enterprises is not voluntary or subject to differing interpretations; it is mandatory. From a legal perspective, NGOs do not exist in their own sector, individual actors subject to their own regulations and guidelines; they are subjects to principles, guidelines, and laws of the civil society they are a part of.
Kemp and Merkelbach state that despite their philanthropic and charitable efforts, and their non-profit stance, it is important to remember that NGOs are still multi-billion dollar corporations. As such, they are just as subject to legal scrutiny as any other business. An NGO, as an employer, must treat the safety and security of its employees in the forefront of its priorities. To ensure employee well being and avoid legal ramifications, an NGO must:
· Implement necessary risk management programs to eliminate, avoid, or anticipate potential threats and risks in employee duties and workplace.
· Have appropriate measures in place to be able to immediately respond to any emergency circumstance or event that may affect employees.
· Inform employees of all risks and threats of both duty and workplace and obtain informed employee consent accepting said risks and threats.
· Have appropriate redress measures in place to compensate any employee who has suffered damages.
· Provide appropriate training and guidance for employees to ensure their safety in the event of an emergency.
· Assess all potential risks and threats to employee welfare on a constant basis and evolve the NGOs risk management programs appropriately with changing circumstances.
The authors have found that in spite of these straightforward obligations, most NGOs remain deficient in staff support services and risk and security management programs, addressing the safety and security of their employees as personal, subjective matters, rather than as a legal obligation.
They conclude that if you are an employee of an NGO, keep in mind your legal rights as you set out to work. Remember:
· NGOs are subject to the same legal responsibilities and obligations as any other organization, especially with regard to employee welfare.
· The responsibilities and obligations of an NGO as an employer are not restricted to an employment contract. NGOs are subject to national law with any persons they have relations with, whether they be volunteers, subcontractors, consultants, or other third parties.
· As an employee of an NGO, or someone who has a relationship to an NGO, you have the legal right to press charges and present claims against said NGO in court.
· If you do press charges or present claims for damages against an NGO, bear in mind the complexity of the case. The court will need to examine carefully the jurisdiction under which your case falls. When this is determined, the court will decide on the relevant applicable national law and statutes to evaluate your case under. Each case is different, and the court will bear in mind the national laws of your country, your NGOs country, and the country in which you may be working when deciding on the appropriate applicable laws and statues for the case.
Kemp and Merkelbach conclude that holding NGOs liable for the health, safety, and security of their employees does not aim at placing an impossible burden on organizations. Rather, by conforming to a basic duty of care, an IOA can better address the needs of its employees. By taking the care to ensure the protection and rights of an employee, the NGO reinforces its organization and its employee management. Bringing on such internal structure and stability would only serve to enhance, not detract from, its humanitarian objectives.