Issues in International Employment Law

Transcription

1 Issues in International Employment Law November 10, 2011 Manesh K. Rath Partner Keller and Heckman LLP 1001 G Street, N.W. Washington, DC Rath@khlaw.com Washington, D.C. Brussels San Francisco Shanghai

2 Scenarios for Labor and Employment Law Coverage US Firm US Firm Foreign Firm Foreign Country Foreign Firm In United States Foreign Country In United States 2

3 US Firms Abroad US firms that hire Americans to work abroad still must worry about US employment and discrimination laws 3

4 Title VII US citizens employed in a foreign country by a US employer or US-controlled employer Supreme Court decision in Boureslan v. Arabian American Oil Company Congressional Reaction 4

5 Americans with Disabilities Act and Age Discrimination in Employment Act Americans abroad US citizens employed by US companies in foreign countries covered Foreign workers abroad Does not apply to non-citizens employed by US companies in a foreign workplace 5

6 Fair Labor Standards Act Does not apply to any employee whose services during the workweek are performed entirely within a foreign country May apply to an employee that performs a portion of the workweek in the US, even if remainder is out of the US Courts split on how to determine where worker is employed Workstation vs. Center-of-Gravity Test 6

7 Work Station Test Focuses on where work is actually performed and ignores other factors Shekoyan v. Sibley Int l Corp. Place where individual spends majority of their working time Gomez v. Honeywell 7

8 Center-of-Gravity Test Analysis of employment location based on variety of factors Torrico v. IBM Corp. Factors include, but are not limited to: Site where employment relationship began Intent of parties concerning location Location of reporting duties Location employee performed duties Location of employee s domicile 8

9 Recent Case Studies Rabe v. United Airlines, Inc. Contract specifying US law will apply upheld even though plaintiff was not a US citizen and worked primarily abroad Reyes-Fuentes v. Shannon Produce Farm, Inc. Migrant workers previously employed in US can sue under the FLSA for alleged retaliatory conduct 9

10 Recent Developments Attorney Client Privilege under new EC rules. Akzo Nobel Chemicals investigation by EC into its U.K. offices. Seized documents between in-house counsel and executives Akzo Nobel sought protection of s under attorneyclient privilege. Clearly contained legal advice from a lawyer. European General Court, E.C.: (1) the communication must relate to a client s right of defense and (2) the communication must emanate from an independent lawyer. In the employment context, this affects almost all employment compliance, terminations, internal investigations, and policy development efforts. 10

11 Foreign Corrupt Practices Act Anti-bribery provisions and books and records provisions In the territory of the United States broadly interpreted DOJ interprets provisions as conferring jurisdiction whenever a foreign company or national causes an act to be done within the US by any person acting as that company s or national s agent Employee whistleblower provision 11

12 Export Administration Regulation Deemed export rule Employers can not share certain technology with non-u.s. nationals without first obtaining a license to export. A large part of compliance comes from knowing what technologies can be shared with your own foreign national non-green card holding employees without first obtaining a license. Department of Commerce Bureau of Industry & Security; Department of State International Traffic and Arms Regulations. 12

13 Foreign Laws Defense Title VII, ADA and ADEA When respondent is protected by a treaty When compliance would cause a violation of local law 13

14 Foreign Law Defense Three-Part Test Action taken against employee in workplace in foreign country Compliance with US discrimination laws would violate foreign law Law is of the country in which employee's workplace is located 14

15 Subsidiaries of US Firms If owned or controlled by an American employer, foreign business must follow ADA, Title VII and ADEA Integrated enterprise or joint employer 15

16 Non-U.S. Firms abroad No US Control Non-U.S. Firms abroad, U.S. workers US discrimination laws clearly do not apply However, each nation will have its own set of laws Complex in economic regions such as the European Union Some instances where internal policy or employment agreement brought jurisdiction back into U.S. 16

17 U.S. and Non U.S. Firms in the U.S. Alien Tort Statute Enacted in 1789 Used recently as a means to sue transnational businesses in the U.S. federal courts for acts conducted in other parts of the world. U.S. firms are getting sued in the U.S. for conduct in other nations Even large U.S. corporations consider publicity and international discovery before litigating further. 17

18 Discrimination in the European Union 2000 Employment Equality Directive Required EU countries to establish minimum requirements toward equal treatment of employees UK Employment Equality (Age) Regulations Objectively justified defense 18

19 Practical Tips Choice of jurisdiction contracts Especially in light of Rabe decision Review existing agreements when acquiring new companies or subsidiaries Be familiar with local foreign employment laws Develop compliance program and training for employee conduct relating to compliance with Foreign Corrupt Practice Act dealing with foreign government customers, dining, entertainment, bribing, provisions of the law and the company s policies and how to carry it out. 19

20 Thank you Manesh K. Rath Partner Keller and Heckman LLP 1001 G Street, N.W. Washington, DC Rath@khlaw.com Washington, D.C. Brussels San Francisco Shanghai