December, 2016

New York University Abu Dhabi (NYUAD) and its Abu Dhabi partner Tamkeen are committed to ensuring fair working and living conditions on the NYUAD campus. To reflect and uphold that commitment, NYUAD and Tamkeen developed a set of labor standards which must be adhered to by service providers and contractors whose employees help to operate and maintain the NYUAD campus.

Over the past year, NYUAD and Tamkeen went through a comprehensive process of updating and revising the project’s labor standards to incorporate lessons learned, recent UAE labor law reforms, and, recommendations from a report by Nardello & Co. following the conclusion of construction at NYUAD. The revised version of the standards, titled the NYUAD Supplier Code of Conduct (or “SCC”), was finalized and released publicly in October 2016.

The Coalition for Fair Labor (“CFL”), a faculty-student group, recently released a statement about the SCC. While we respect the CFL’s role as an advocacy organization, and are pleased they share our commitment in this matter, its statement did not accurately portray key details regarding the implementation and enforcement of the SCC.

To ensure members of the NYU and NYUAD community have a sound understanding of the SCC and labor compliance at NYUAD, we have provided more information below on the process of revising the SCC, certain key provisions of the SCC, and how the SCC will be implemented and enforced.

  • The NYUAD Supplier Code of Conduct is the result of extensive research and consultation. The SCC was developed by a task force with members from NYU Abu Dhabi, NYU New York, and Tamkeen, including compliance professionals and a faculty representative.

    In developing the SCC, the task force incorporated numerous lessons learned from NYUAD’s collective experience in labor compliance since 2009, including feedback gathered directly from workers on the NYUAD campus. The Task Force also consulted with, and incorporated advice from, outside experts who study migrant labor in the Gulf. Key University governance groups were also briefed on, and given the opportunity to ask questions about, the SCC.

    The CFL did not play a formal role in the revision process, as the University believed it appropriate to keep the process within the University’s formal governance structures. However, University representatives have repeatedly met with CFL members, including as recently as October 2016, to discuss the University’s efforts to ensure fair working and living conditions for campus workers.
  • The NYUAD Supplier Code of Conduct includes numerous provisions to promote ethical recruitment practices by employers. A key challenge at the core of migrant labor exploitation is the charging of “recruitment fees” by informal — and typically illegitimate — labor recruitment agents in workers’ home countries, which often result in illegal, under-the-table payments from workers in exchange for providing them with a job in the Gulf. Despite its exploitative nature, the practice is deeply entrenched within labor-sending countries and, as the Nardello & Co. report notes, a “long-term solution to the serious issues posed by recruitment fees… requires multilateral actions of governments within the relevant jurisdictions where recruitment fees were paid.”

    To mitigate against the risk of NYUAD campus workers being indebted as a result of such “recruitment fees,” the revised SCC incorporates the Nardello & Co. report’s recommendation to employ contractors who take measures to mitigate abuses in the recruitment process (Nardello report, §6.2.2(a)).

    The SCC incorporates this recommendation by:

    -Prohibiting employers from charging, directly or indirectly, in whole or in part, any recruitment, processing, or placement fees to employees (SCC Section L.1)

    -Requiring employers to disclose to NYUAD if they have used a recruitment agency (SCC Section L.3)

    -Requiring employers to use only bona fide and appropriately licensed recruitment agencies (SCC Section L.4.b)

    -Prohibiting any employer or any of its representatives involved in the recruiting process from receiving any compensation from recruitment agencies, including but not limited to in-kind benefits relating to “hospitality expenses” incurred when employer representatives visit the nations from which workers are recruited (SCC Section L.4.d)

    -Requiring that an employer pay for the services of any recruitment agency used, and allow NYUAD to examine documentation of this payment or other related documentation, in order to ensure that employees have not borne recruitment costs and fees, directly or indirectly (SCC Section L.5)

    -See the whole of SCC Section L for a full list of requirements.

    The SCC also requires employers to reimburse employees for recruitment costs/fees paid by employees within 12 months of starting work on the NYUAD campus. While the SCC requires the worker provide suitable documentation of such costs/fees — NYUAD’s compliance team has broad purview to consider all requests for reimbursement, and to consider proof of payment beyond an actual receipt, which may be difficult for workers to provide. In the rare situation in which a contractor might not agree with NYUAD’s findings, NYUAD may reimburse workers directly, and then exercise contractual remedies under the SCC, such as withholding such a reimbursement from future payments due to the contractor.

    In addition, under the supervision of Peter Bearman, the Cole Professor of Social Science at Columbia University and Director of INCITE (Columbia’s Interdisciplinary Center for Innovative Theory and Empirics), NYUAD is sponsoring research that seeks to advance understanding of labor migration processes by supporting collaborative research. The initiative, entitled Research & Empirical Analysis of Labor Migration (REALM), recently announced that it will fund 12 projects examining labor practices in sending countries such as Bangladesh, India, Nepal, Pakistan, the Philippines, and Sri Lanka.
  • The NYUAD Supplier Code of Conduct prohibits employers from improperly holding worker passports. As the Nardello & Co. report noted, while NYUAD’s previous labor standards prohibited employer “confiscation” of passports, the standards were not clear on whether employers could hold employee passports if they had employee consent to do so. While such consent may have been freely given in some cases, given the potential for coerced consent, the Nardello & Co. report recommended a clear prohibition of employer retention of passports.

    Though such a prohibition had already been in place for all of NYUAD’s operational contracts since 2010, the revised SCC incorporates Nardello & Co.’s recommendation, which also reflects UAE law, by explicitly providing that employers “will not retain the Personal Documents of any Employee other than for the purposes of obtaining, renewing, or cancelling residency visas” (SCC Section K). The SCC also requires employers to provide a lockbox in employees’ rooms for the purpose of storing such personal documents (SCC Section I.5). Any non-adherence to these requirements will be treated as non-compliance, with the remedies specified in SCC Section Z available as recourse, including deduction from future payment to the employer and termination of the underlying contract.

    The CFL has raised the concern that the SCC does not explicitly require employers to inform employees of their rights under the SCC. As part of the onboarding process for new employers, NYUAD instructs employers that they must inform their employees of their rights under the SCC, and NYUAD’s compliance team reinforces the University’s standards during all meetings with workers. NYUAD and Tamkeen agree that the SCC would be strengthened by a specific requirement that an employer provide a copy of the SCC to each employee in a language that he/she understands, and the SCC has been updated accordingly.
  • The NYUAD Supplier Code of Conduct ensures workers are provided with suitable housing. The SCC includes a series of housing requirements to ensure that campus workers — including short-term workers — are provided with a suitable living environment and reasonable levels of decency, hygiene, and comfort (SCC Section I).

    NYUAD compliance visits an employer’s housing arrangements throughout the term of contracts to ensure such housing complies with the SCC. The SCC also requires employers to allow/facilitate access to employer-provided accommodation for NYUAD (and its compliance auditor/monitor) for the purpose of inspecting.

    In addition, while some of the campus workforce live in regulated group accommodations, many of NYUAD’s operational workers — including those working in security and transportation — are provided with lodging in an apartment building in the center of Abu Dhabi. Other workers reside in various types of accommodations ranging from shared villas or apartments in other locations within the Abu Dhabi city limits, as well as on Yas Island, and in Mussaffah, Khalifa City, and surrounding areas (all of which are in Abu Dhabi).
  • NYUAD’s contracting process ensures that campus workers receive fair wages. The SCC requires that employees are provided with wages that provide for their essential needs and living standards, and that they must be paid at least monthly (SCC Section B).

    The CFL expressed concern that the SCC does not stipulate minimum wage levels. However, it is incorrect to assume that the lack of stipulated wages in the SCC means that NYUAD does not set wage levels with its suppliers. NYUAD negotiates its operational contracts on a case-by-case basis, and only after conducting wage surveys, to ensure that operational workers on campus are paid at the top of the market in their respective fields.
  • NYUAD has a robust compliance monitoring system. NYUAD has a labor compliance monitoring system that goes far beyond requiring its contractors to self-certify compliance with the SCC.

    NYUAD has a dedicated, in-house, on-the-ground compliance monitoring team, which informs employers of their responsibilities under the SCC, interviews workers, inspects employer-provided accommodations, and works with employers to promptly rectify instances of non-compliance. In addition, the University maintains a 24/7 reporting line in which members of the community, including contract workers, are able to confidentially report any compliance-related concerns.

    In addition to NYUAD’s dedicated compliance team, NYUAD has engaged an external third party, Impactt, Ltd., to provide an independent, additional layer of compliance auditing by conducting quarterly fieldwork audits. Impactt will produce an annual report covering its findings, which will be released in spring 2017.

    The CFL expressed concern that the SCC does not specifically reference a third-party compliance auditor. As reflected in its title — the Supplier Code of Conduct — the SCC sets out contractual requirements for suppliers. The appointment of a third-party auditor is not a contractual responsibility for NYUAD’s service providers to meet, but rather a component of NYUAD’s compliance monitoring system.
  • NYUAD has the contractual right to impose penalties on non-compliant employers. The SCC provides NYUAD with a range contractual remedies to address instances of employer non-compliance (SCC Section Z). The CFL is correct in noting that the revised SCC did not incorporate the Nardello & Co. report’s recommendations to include a schedule of escalating, public penalties for non-compliant contractor.

    While we understand the intuitive appeal of strict, public penalties, NYUAD’s experience to date is that it has been most effective when working with contractors to address areas of non-compliance. These contractors have an enormous incentive to meet NYUAD’s standards; repeated non-compliance would lead to contract termination or non-renewal, which would not be in their best interest. As a result, depending on the severity of the non-compliance, it is not unusual for an issue to be resolved within 24 hours. It is also important to note that terminating a contract is typically the University’s last resort, given it is the least favorable outcome for workers, since they would no longer work on the NYUAD campus and could be laid off as the employer may no longer have work for them.
  • NYUAD’s current contracts — which are mostly long-term contracts with campus service providers — have a much lower risk profile than was the case during construction. The construction of the NYUAD campus was a massive, four-year project that involved approximately 30,000 individual workers employed by several dozen subcontractors.

    The Nardello & Co. report — which focused on construction — did not raise any concerns about the treatment of individuals working on NYUAD’s operational contracts. Today, NYUAD’s operational contracts cover just over 1,000 workers, and are under the direct oversight of the University and its compliance processes. This includes areas such as security, transportation, food services, and facilities management.