This toolkit will address the broad scope of global discrimination programs. We will also cover two challenging discrimination subtopics, global age discrimination compliance, and global pay discrimination compliance. In addition, discuss global initiatives for combating workplace harassment. Finally, we will focus on global workplace initiatives regarding diversity.

To Read More Click Here

Pulling Professor Blanpain’s observation down to the multinational human resources level, today’s high-tech globalized workplace spawns two vital trends in cross-border HR: International outsourcing and international telecommuting. In a sense, international outsourcing is the big-picture, macroscopic half of this issue—an employer business in one country contracts for products or services from an unaffiliated employer business in another country. International telecommuting, meanwhile, is the microscopic half of this same issue—an employer in one country arranges for one of its own employees to work from a home overseas.

Decades ago, practical issues made cross-border telecommuting almost impossible. In a lower-tech era, a lone wolf employee could not feasibly work solo from a home in a foreign land where the employer had no presence, because he would have needed dedicated office space, secretaries, back-office support and fluid communications with customers and the home office. But now, as Professor Blanpain implies, even a top performer might successfully telecommute “from the other side of the globe” with just a computer, smartphone, printer, express courier delivery and maybe Skype videoconferencing.

Indeed, technologies that facilitate cross-border telecommuting are powerful tools for retaining talented employees who, for whatever reason—business or personal—need to work from a home in a foreign country without checking into a brick-and-mortar office. Allowing overseas employees to work from overseas homes lets the employer leverage technology to retain valued staff and boost employee “engagement,” or else plant an employee abroad for strategic reasons. But telecommuting across national borders triggers a number of legal issues.

To tackle the legal problems inherent in cross-border telecommuting, begin by isolating the context in which the international telecommuting arises. Cross-border employee telecommuting questions come up under four different scenarios:

Scenario #1:
Telecommuting from a country where the employer already has staff. Sometimes an employee who used to work at headquarters (or some other established employer facility) now needs to move abroad. The overseas move might be businessdriven or it might be for personal reasons—the telecommuter might be a “trailing spouse” married to another company’s expatriate or might be returning to a home country to rejoin family or care for a sick parent. Whatever the reason, the employer agrees to let the employee keep his job and telecommute from a foreign home. Where an employer affiliate is already registered, doing business and employing staff in the host country where the telecommuter will work (that is, where the employer already has a local branch, representative office, or subsidiary up, running, employing staff and issuing payroll in the host country), then the employer is ready to payroll the telecommuter legally.

Scenario #2:
Telecommuting from a new country. As Professor Blanpain said, technology facilitates dropping a telecommuting employee into any country—“even [on] the other side of the globe.” Multinationals sometimes send telecommuters (or tolerate their going) into foreign countries where the employer is not yet registered and does not yet do business or issue local payroll. Sometimes a multinational even hires a foreign telecommuter to develop a new overseas market without first getting registered to do business locally. Other times an employer reluctantly accommodates an employee who for personal reasons asks to telecommute from a foreign country where the employer does no other business and employs no one else. In these situations, telecommuting means employing what we might call a “floating” employee in a new jurisdiction.

Scenario #3:
Mandatory overseas telecommuting to save rent. Occasionally a frugal multinational closes a smaller or less profitable foreign office to save rent and requires any surviving in-country employees to telecommute from home. The employer may still want to do business in-country, or it might be phasing out its local operations but nevertheless retaining a legacy employee or two for a while.

Scenario #4:
International telecommuting policy. Sometimes a multinational wakes up to the fact that its various local foreign affiliates each host employees working under inconsistent, ad hoc telecommuting arrangements. To bring structure and cross-border consistency to its own telecommuting assignments internationally, the multinational headquarters issues a regional or global HR policy or code of conduct provision that aligns its approach to work-from-home arrangements.

Cross-Border Telecommuting Checklist
Each of these four cross-border telecommuting scenarios raises a number of legal and practical issues. When wrestling with international telecommuting under any of these scenarios, account for these potential issues:

 Immigration: Does the telecommuter have the right visa/work permit in the host country? Can the employer even sponsor a visa in the host country? Never let someone telecommute as an illegal alien.

 Conforming employment agreement: Does the telecommuter’s employment agreement reflect the telecommuting arrangement and comply with host-country law? Outside the United States, employees often have written individual employment agreements; indeed, in jurisdictionsfrom the European Union to Bahrain, China, Mexico, Oman and beyond, laws require written individual employment agreements or statements that must mention (among many other topics) place of work. When agreeing to let someone change place of work to “home,” be sure the employee executes an employment contract amendment that reflects that change and that memorializes all other special accommodations particular to the telecommuting arrangement—the topics discussed below.

 Pay/benefits delivery: How will the employer legally deliver pay and benefits to the overseas telecommuter? How will the employer comply with host-country payroll, withholding, and social security contribution mandates? What about host-country currency rules? Dual-jurisdiction tax exposure? Equity or stock option plan participation and taxation? Benefitsplan eligibility? Social security totalization (treaty) agreements?

 “Floating” employee telecommuters: Will the telecommuter work from a home in some country where the employer is not licensed to do business and cannot issue a legal payroll—the “telecommuting from a new country” scenario? This opens a Pandora’s box of legal issues, discussed in our Global HR Hot Topic for October 2013, including employment arrangement structure, “permanent establishment,” licensing, payroll and employment law compliance. Account for these.

 Tracking telecommuter “home”: What if some telecommuter at some point quietly moves across borders without telling the employer? Many employers have discovered, too late, that a formerly local domestic telecommuter who started telecommuting in the employer’s home country at some point, without saying anything, moved to some other jurisdiction where the employer does not do business, thereby implicating the “permanent establishment,” immigration, payroll and other legal compliance problems that we discuss in our Global HR Hot Topic for October 2013. Be sure to impose a tough but enforceable rule prohibiting telecommuters from unauthorized moves. Monitor compliance.

 Dislocation: How will the employer address the practical issues around the employee’s loss of office—disconnection from peers, lack of contact with the organization, remoteness from clients, lack of secretarial and logistical support, absence from meetings? If the employer is forcing the employee to telecommute (the “mandatory overseas telecommuting to save rent” scenario), how can the employer address the vested or “acquired” rights issues? See our Global HR Hot Topic for January 2009.

Link to physical office: Must the telecommuter dedicate a discrete room to serve solely as the home office? Will there be any “hot desking,” mandatory reporting to a physical office, or other anchor to a physical workplace? If so, how will that work? How can the employer summon the telecommuter to meetings or require that some work be done from an employer office?

 Expatriate benefits: Will the overseas telecommuter be an expatriate eligible for the company expatriate benefits plan? If so, how will the multinational deliver its suite of expat benefits to someone with no company office? If not, is the telecommuter effectively foreclosed from claiming expat benefits?

 Infrastructure/technology: How will the employer provide the infrastructure necessary for the employee to work effectively from home? Consider: Computer; high-speed internet connection; dedicated in-home office; dedicated phone line; Skype. Who pays? How do expense reimbursements for these work? If the telecommuter will supply his own technology devices, has the employer buttoned down BYOD (bring your own device) issues like employee consent, security, monitoring and remote data destruction? Is the employer’s BYOD policy even enforceable in the host jurisdiction?

 Data security and confidentiality: What systems (technological and contractual) safeguard the employer’s business data—online and hard copy—at the home worksite? Does the telecommuter expose the employer to an intolerable risk of data breach or breach of confidentiality? Does the telecommuter’s physical home office raise risks of non-employees (family members, guests) breaching company information?

 Data protection compliance: Does the host country impose an omnibus data privacy law? If so, what systems safeguard the telecommuting employee’s compliance? If the employee will process personal data or transmit personal data across national borders, some countries (France, Romania, others) require filings with local data protection authorities, even with a lone telecommuter as “data processor.” How will the employer accomplish and pay for these registrations? Separately, how will the employer make any locally required data processing notices/disclosures to the telecommuter himself, as data subject?

 Computer and telephone monitoring: Will the employer remotely monitor the telecommuter’s computer, keystrokes, log-ons, emails, Internet access or other uses of technology? What about telephone monitoring? Employer monitoring must comply with local data law. Should the telecommuter receive a monitoring notice or sign a monitoring consent?

 Registrations and licenses: Does the telecommuter have all mandated host-country licenses? For example, journalists, engineers, securities dealers, doctors and lawyers are regulated professions and often need local licenses. A telecommuter who will need to drive for work needs a locally-recognized driver’s license.

 Supervision/quality control: How will the employer supervise the telecommuter? How to ensure he works required hours? How to monitor attendance? How to control quality? How to ensure the telecommuter himself personally performs the work (without delegating/subcontracting to others)? Might the telecommuter hire assistants without employer permission? Do procedures here comply with applicable law?

 Wage/hour laws: How will the employer ensure it complies with host-country wage/hour laws? How will the employer monitor work hours to comply with local wage/hour, overtime pay, caps-on-hours, break and vacation laws? How will payroll compensate overtime worked? Perhaps all countries impose wage/hour laws, and few jurisdictions exempt as much of the workforce as the Fair Labor Standards Acts does in the United States (a US “exempt” job is less likely to be exempt abroad).

 Health/safety and duty of care: Does the telecommuter’s home worksite comply with local health and safety laws regulating physical workplaces? How will the employer monitor ongoing compliance? How will the employer meet its duty of care to the telecommuter? All countries impose workplace health and safety laws; these laws rarely exempt home workplaces and are rarely susceptible to contractual opt-outs or employee selections of foreign law. See our Global HR Hot Topic for September 2012.

 Compliance with local employment laws, collective agreements and employer polices: How will the employer verify that the telecommuting set-up complies with local employment protection laws? (Again, asking the telecommuter to opt out of local law contractually or selecting a foreign jurisdiction’s employee protection laws likely does not work; see our Global HR Hot Topic for September 2012). How will the employer identify and comply with any applicable local industry (“sectoral”) collective bargaining agreements? How to comply with the employer’s own global policies/codes of conduct?

 Real estate: Does the telecommuter’s in-home worksite comply with local zoning/subdivision/apartment building restrictions against working or running a business? By definition, anyone who works from home for pay does business in his or her residence. Has the telecommuter contractually committed to comply with these rules—and to indemnify the employer for a violation? Will business visitors meeting at the home office raise real estate problems? Has the employer agreed to reimburse the telecommuter for providing the home office? If not, has the employee adequately waived the right later to claim back rent?

 Ending telecommuting: How can the employer end the telecommuting arrangement? Has the employee signed an enforceable agreement to resume office work on employer demand? Vested rights rules abroad can limit an employer’s freedom to pull an employee back to an office—especially if this will require an international move.

 Return of equipment and data: When the telecommuter quits or is dismissed, how, as a practical matter, will the employer collect back its equipment, data, documents—and all copies?

Originally published on the website of White & Case.

And yet American employers have been battening down for the Ebola pandemic possibly to come. Industrial health and safety experts have been recommending Ebola protective measures. Conferences on Ebola have been scheduled. Law firms have issued bulletins explicating the theoretical legal issues that might emerge were Ebola to infect American workplaces. The US Occupational Safety and Health Administration has even drawn criticism for not giving employers enough detailed guidance on preventing Ebola.

Meanwhile, where an actual Ebola pandemic rages in real time and endangers countless workers is West Africa, particularly Liberia, Sierra Leone and parts of Mali and Guinea. The World Health Organisation had declared Africa’s Ebola pandemic a “Public Health Emergency of International Concern.” The pandemic has killed well over 5,000 Africans with “more than 150 Liberian medical workers [having] died from Ebola.” (S. Fink, “Treating Those Treating Ebola in Liberia,” The New York Times, Nov. 6, 2014)

As of 2014, the most urgent real-world Ebola risk threatening the American workforce is in Africa—that is, the danger US-based staff face when traveling for work to West Africa. Think of researchers, journalists, consultants, medical relief workers, infrastructure development teams, government staff, government contractors, and American expatriates who happen to live and work where Ebola strikes.

And so the most practical Ebola question that employers should be asking about their American staff is: What is our liability risk as to our US-based employees and expatriates who contract Ebola while working overseas?

Download the PDF

But actually, employment issues do not drive the merger and acquisition process. If we break down the mechanics of how M&A deals get structured, workforce issues are at best peripheral to the M&A process. Human resources leaders rarely get a “seat at the table” in planning acquisitions and divestitures. Employment and even employee benefits lawyers usually play at best a supporting role, and sometimes little to no role.

Yet employment, benefits and compensation issues in cross-border mergers and acquisitions can get complex. Businesses need expert guidance focused on cross-border staffing challenges. One law firm has noted that “although M&A projects tend to be driven by corporate or tax lawyers, in many cases labor law issues have significant influence on whether…the deal is successful.”

Our discussion here amounts to a toolkit for US human resources professionals and lawyers responsible for the workforce issues in cross-border M&A deals (transactions where the seller employs staff in more than one country). We focus on the multinational buyer and seller as they account for the seller’s outside-US staff who, at closing, will transfer over to the buyer. Our discussion breaks down into three topics: (1) staff transfers outside the United States (vested rights, acquired rights, de facto firings); (2) an international M&A employment due diligence checklist; and (3) a checklist of workplace issues in international mergers and acquisitions.

Download the PDF.

Read more

Cross-border HR compliance initiatives have many facets. A multinational has obvious incentives to verify that its overseas HR operations comply both with foreign local laws and with the growing list of “extraterritorial” laws that reach workplaces internationally.

Read more download PDF

In the United States, employee “handbooks”—which these days increasingly exist electronically on an organization’s intranet—summarize employees’ day-to-day terms and conditions of employment and benefits offerings. Staff handbooks cover topics as varied as “onboarding,” disciplinary rules, hours/work time/overtime, pay period, paid time off (absences, sickness policy, vacations, holidays), leave, benefits/health care/insurance, safety and security, dress code, smoking policy, expense reimbursement, access to employee emails/Internet, confidentiality, social networking and social media, coworker dating, antinepotism in hiring, “bounties” for recruiting new employees, discounts at local merchants, dispute resolution and many other subjects. In addition, all well-drafted American handbooks include a conspicuous “employment-at-will disclaimer” explaining that the document does not constitute an employment contract and reserving the employer’s right unilaterally to change or revoke the handbook, or any provision in it, at any time.

Download the PDF

Firing an employee in the United States can be a challenge. Group firings – reductions-in-force – can be an even bigger challenge. And from the point of view of a multinational headquartered in the United States, overseas individual dismissals and “collective redundancies” can be an intractable challenge.

We often hear the point that “[u]nlike many other…countries, the default presumption in the United States is that employment is “at will,” meaning an employer or employee can terminate the employment relationship for any reason or no reason at all.”