Sending Your Employees Abroad: The Web of Legalities
You, like many other businesses, desire to send an employee abroad. Once you wrap up the immigration issues, there are a variety of other legal challenges and pitfalls to consider.
Let’s say, for instance, that you are sending your American employee to Germany. Do the employment laws of Germany or the employment laws of the United States apply? The general rule is that the employment law of the host country, in this case, Germany, will apply. This is true even if you and your employee sign a contract requiring that American law will apply.
What does this mean for you and your company? In Ohio, Kentucky, and Indiana, employment is presumed to be at-will, meaning either party can get out of the employment relationship at any time, with or without cause. It is the ultimate in flexibility. In many countries around the world, however, your employee will no longer be an employee-at-will. Instead, many countries require that employees receive mandatory notice prior to being let go, severance payments, and governmental approval in the event of a layoff.
It also means that the laws on pay, hours, vacation, overtime, safety, wages, labor unions, benefits, discrimination, and others from the host country will apply as well. The bottom line is that you or your attorney must consult with a labor and employment attorney in the country where you are sending your employee.
Moreover, not only must you comply with the laws of the country where you are sending your employee, some United States laws also apply to workers abroad. The laws banning discrimination and harassment in employment generally apply to U.S. citizens working abroad. This means that if your American employee working in Germany gets sexually harassed by German employees in Germany, she can sue you in an American court for violation of U.S. laws. This is going to be a very difficult and expensive lawsuit to defend with cultural differences, interpreters, and lots of travel. In addition, depending on the country, your U.S. employee could also sue you for sexual harassment in the country where she was based.
Other American laws, however do not apply abroad. For instance, the laws governing overtime, workplace safety, and union organizing generally do not have reach to Americans working abroad.
The key is to realize that when you are sending U.S. workers abroad, you have two sets of laws to consider – the laws of where you are sending the worker and U.S. laws.
