ENGAGEMENT ISSUES

This section provides a sequential overview of the issues important in developing a clear and effective description of the relationship between an employer organization and the individual providing services through an arm's length contractual relationship. While the majority of comments are applicable for consideration and discussion between an employer and employee in conventional employment relationships, the focus here is on the definition of the relative roles in the more distinct contract employment relationship; where it is beneficial to both parties that all the issues are adequately addressed. From the perspective of professional liability, it has been amply demonstrated that a definitive and considered scope of responsibilities and expectations of both parties will greatly reduce misunderstandings and focus on quality service to the client, public and each other.

2.1 SCOPE OF SERVICES

Developing a scope of services is essentially listing the specified tasks envisioned within the term of engagement and the delivery or performance expectations associated with the various tasks.

Dependent on the size and complexity of the employment organization and/or project, it may be necessary to define the specific technical discipline of the activity and skills expected or required to undertake the commission effectively. The APEGGA Code of Ethics requires professionals to clearly state the level of skill that can be delivered in meeting the employer objectives and project requirements. It is detrimental to both parties for either to convey inaccurate expectations of skill or abilities in the core of the contractual relationship. The scope of services can also indicate potential or future scope for the individual based on performance of services or the extension of project requirements.

In special instances, the employer may require the contract employee or independent contractor to undertake supervision or administration of the organization's employees and/or client relationships. It is important that these corporate responsibilities are clearly defined and that the vehicle for acting on the employer's behalf be reviewed for legal and financial implications.

2.2 REPORTING AND SUPERVISION

Clarification of reporting and supervision responsibilities is critical to the flow of work, quality control, communication and employee development.

2.2.1 Supervision Received

When taking an employment position, the APEGGA member should clarify with the employer the amount and kind of supervision that will be received. The need for supervision should be determined at the outset of the engagement and should address

· extent of work reviews
· availability of technical guidance
· expectations for working independently
· co-operative work on teams
· progress reporting and stewardship
· accountability

2.2.2 Supervision Exercised

When taking a role involving the supervision of people in the employer's organization, it is important to define the elements of the supervisory role and the expectations. Consideration should be given to defining the

· technical supervision and mentoring responsibility
· administrative supervision responsibility
· expectations for assuming professional responsibility for the work of those supervised
· expectations as the responsible engineer for permit stamping
· numbers of people to be supervised
· skills of those to be supervised
· consultation requirements and availability
· expectations for training others
· authority in setting work methods
· disciplinary authority
· expectations for performance assessment of others
· accountability.

2.2.3 Use of Professional Stamp and Permit to Practice Stamp

· The APEGGA Permit to Practice and Professional Member Stamp represent registration of the company and individual, respectively, to represent themselves as qualified to provide services in designated disciplines. Issuance of the stamps implies a level of capability to be approved for registration as a member of APEGGA, but does not represent verification by APEGGA of a quality control procedure in completion of professional services rendered.

· Conventional practice has been that application of the stamps is part of a quality control process of the individual or organization. It is to be noted that the performance of professional services, whether or not the stamps are applied, does not relieve the individual of professional liability as noted in Section 2.4.

2.3 PROFESSIONAL RESPONSIBILITIES

At all times during and after the term of the contract, it is the professional's responsibility to adhere to the APEGGA Code of Ethics. A clear understanding of the services required is essential to ensure that the contract employee will not put himself or herself in a compromising position. If the contract employee is concerned that the services required will be in conflict with the Professional Code of Ethics, this should be discussed with the employer and a satisfactory resolution achieved. In the absence of satisfactory resolution, the professional member must decline the opportunity to enter into contract services with the employer.

To facilitate this process, it is recommended that the contract employee be fully conversant with the APEGGA Code of Ethics as outlined in the "GUIDELINE FOR ETHICAL PRACTICE V2.0."

Recognizing that the prospective employer may not normally employ the services of an APEGGA professional member, the contract employee should ensure that the employer is aware of the professional obligations required of APEGGA members. The contract employee should be prepared to supply a summary of his/her competency profile to the employer.

Once a contract is entered into, the contract employee is obligated to provide the professional services to the best of his or her abilities.

2.4 PROFESSIONAL LIABILITY

When accepting an engagement to provide professional services, issues relating to the assumption of liability for the work being performed should be clearly understood.

The employer's expectation of indemnification against loss as a consequence of work done by a professional should be clearly understood by both parties. The ability of the employee to obtain satisfactory Professional Liability insurance should be addressed.

The provider of professional services should understand the extent of liability assumed in doing the work, the acceptable level of risk, and possibly the need and availability of Professional Liability (Errors and Omissions) insurance.

When negotiating conditions of liability and indemnification or limitation of liability, consideration should be given to:

· fixing the maximum amount of liability
· fixing the time duration of the liability
· fixing the scope of work for which liability is assumed
· limiting or fixing the type of liability (consequential, direct damages etc.).

Other considerations in assuming liability are:

· responsibility for defense costs
· extent of consequential damages, if applicable
· post contract liability
· protection from the actions of third parties
· remedies for negligence, omissions and willful acts on the part of the employer or third parties
· responsibility for insurance premiums following completion of the contract and/or survivability of the employer organization.

In certain contract employment situations, the professional will require a "save harmless" clause, particularly where neither the employer nor the professional are in a position to provide adequate Professional Liability insurance coverage.

2.5 QUALITY CONTROL AND ASSURANCE

It is important for both the professional services provider and the employer to understand the elements of professional practice. The APEGGA publication "Professional Practice - A Guideline" presents the requirements for Quality Management and professional practice.

Factors to be considered in providing high quality professional services include:

· the availability of adequate facilities, resources and equipment
· effective loss control and risk management practices
· a business contract that recognizes and rewards value, and one that does not put the professional member in a situation of compromising professionalism for cost
· an environment that fosters professional development by way of technical training, effective communication and teamwork
· quality practices using codes, standards, work reviews, document management, planning and management review
· a professional practice management plan that addresses ethics, professional responsibility, quality assurance, document management and communications and control.

2.6 PROFESSIONAL DEVELOPMENT

The Code of Ethics requires that APEGGA members "undertake only such work as they are competent to perform by virtue of training and experience". Training and the accumulation of experience is most often associated with the early stages of an individual's career. However, all members should not overlook the fact that today's technology-based society demands specialized knowledge to be effective and competitive. Every member should establish a personal program of continuing education to maintain and upgrade their knowledge and competence.

Employers of APEGGA members also have an obligation to ensure that their professional staff maintain technical competence in all areas in which the employer offers or uses professional services. Employers should be encouraged to provide or support education and training programs such as:

· formal training sessions conducted by the employer or by recognized outside organizations
· informal on-the-job training under the guidance of qualified personnel
· informal information sharing between employees through workshops and networks
· active participation by contract employees in appropriate technical and professional societies
· supporting professional members in APEGGA's mandatory Continuing Professional Development Programs.

The extent of employee integration into the employer's organization (see Section 2.9) is to be considered in professional development discussions.

2.7 ETHICS

In seeking, obtaining and maintaining employment, APEGGA members have an obligation to conduct themselves in an ethical manner. This applies to the manner in which they compete with other members for employment; portray their training, skills and experience to employers; and, for self-employed and contract members, the way in which they conduct their business affairs. The Apegga Guideline For Ethical Practice V2.0 contains descriptions of ethical and professional conduct expectations.

2.8 ADVERTISING

For APEGGA members seeking employment, the most common means of advertising their services is through a personal résumé. Care should be taken to ensure that information is accurate and that details presented do not contravene confidentiality agreements with previous employers and clients. The individual must only represent expertise in those areas in which he or she is fully competent.

Professionals who are self-employed or those providing services on a contractual basis may use additional means to advertise, such as business cards and insertions in publications. The content of these and all other forms of advertising should comply with guidelines established by APEGGA.

2.9 ORGANIZATIONAL INTEGRATION

The degree to which a contract employee can best provide service to an employer is directly related to the knowledge and relationship the individual has with other employees participating in the project and the operating practices of the organization.

Responsibility for work output and quality control is directly related to the degree of direction given the employee (Section 2.2). In the case of a Member-in-Training working as an independent contractor or contract employee, and who, for APEGGA registration purposes must be directly supervised by a Professional Member, the mechanism for direction and responsibility must be discussed.

Some additional clarity associated with organizational integration include the use of facilities (e.g. office space, materials, stationery and vehicles), ownership of tools (e.g. computer) used to perform the work and the degree to which the work is considered to be an integral part of the business (e.g. part of the organizational chart, receives or requires training by the employer).

Many organizations have developed ISO quality management programs: it is important to understand and comply with employer policies and procedures for tasks; including safety, quality control and reporting.

2.10 INTELLECTUAL PROPERTY

Proprietary knowledge can be a critical ingredient to business performance. Intellectual knowledge and proprietary property includes patents, trade secrets, know-how, confidential practices and a range of other privileged information such as client lists and project/ contract details.

The stated, or expected, confidential treatment of information available to the contract employee is integral to professional conduct. It is both unlawful and contrary to the APEGGA Code of Ethics to divulge, misrepresent or otherwise release information and property that is proprietary to the employer without permission. Discussion in the identifying and handling of intellectual property should be addressed in the employment contract; this is often contained in a Confidentiality Agreement. When the terms of the contract result in a copyright, patent or other form of business venture, the agreement should identify terms of contract employee or independent contractor participation or remuneration, if applicable.

2.11 DURATION OF CONTRACT

Typically, for contract employment, a time-specific contract will be entered into for a specified scope of services or single/multiple projects, as required by the employer. The duration of the contract may be determined by the employer or may be negotiated based on the contract employee's estimate of completion date. In either case, it should be understood by both parties that the employer is entitled to receive the services contracted for in the timeframe specified and is prepared to compensate the contract employee for services performed in the manner agreed to in the contract.

For the protection of both parties, the contract may contain a clause which allows for cancellation by either party given mutually-agreed-to notice periods. Consideration can also be given to the compensation required for an employer to terminate a contract without notice.

Upon mutual agreement, contracts may be extended for the services originally contracted for or renewed for additional services required.

Additional clauses may address actions for which termination without compensation will apply and may normally focus on mutually agreed upon measurements of performance or conduct.

Non-competition clauses should be reasonable, with realistic definitions of time, geography and scope specific to the services provided to the employer.

Confidentiality clauses can extend after termination and would reasonably address items discussed in the previous section including know-how and customer information.