On June 16, 2017, the Supreme Court of Appeals of West Virginia delivered its opinion in the matter of Martinez v. Asplundh Tree Expert Co., which involved consideration of whether two key pieces of West Virginia’s Legislative reform of 2015 would be applied to currently pending civil actions. The Supreme Court of Appeals accepted two certified questions from the United States District Court for the Northern District of West Virginia regarding whether West Virginia Code §§ 55-7-3E and 55-7-29, which both became effective on June 8, 2015, would apply to civil actions that were filed before June 8, 2015. The West Virginia high court, in a 3-2 decision, ruled that the statutory language in each provision made clear the Legislature’s intent to remedy West Virginia’s standing as a judicial outlier and that, because the statutory sections were remedial in nature, the provisions should be applied to all actions that proceed to trial after June 8, 2015. The Court took due notice of the language in each code section in reaching its ultimate conclusion.
Although it has been more than two years since the Supreme Court of the United States (“SCOTUS”) issued its Obergefell v. Hodges opinion and more than four years since its US v. Windsor opinion, the law is still evolving as it concerns same-sex marriage. It is important for employers who wish to minimize their litigation exposure to determine what “rights, benefits, and responsibilities” same-sex spouses should be extended in the same manner as opposite-sex spouses. While SCOTUS has indicated its belief that Obergefell’s holding and application are clear, recent rulings indicate otherwise . . . which means employers would be well-advised to stay tuned.
The other day, my husband’s best friend called him from a beach in Dubai where he has been sent to work for the next six weeks (in Dubai, not on the beach – that part was boasting). Now, world traveler that I’m not, I think of Dubai as “somewhere in the middle,” and I had no idea that it had beaches. So, I looked it up (the beaches do look lovely), and it got me thinking about all of the planning it must take for an employer to ship even one employee off to another country to work for six weeks. Turns out, there is a lot of preparation that should go into it.
Employers are charged by OSHA to provide a safe workplace for their employees. Here are some thoughts on how to do that for employees working abroad:
- Have the employee see a qualified physician to obtain any necessary/recommended vaccines with sufficient lead time to maximize their effectiveness.
- Check out the Centers for Disease Control and Prevention website (https://www.cdc.gov)
for information specific to the destination country.
- If you provide health insurance to your employees, call the provider for information on coverage outside the U.S., including medical evacuation coverage, to see if additional insurance should be purchased. This also should include a look at your workers’ compensation coverage for extra-territorial work.
- Establish a relationship with a local hospital or medical provider so that your employee knows up front where to go or who to call if he becomes ill.
- Empower your employees to consider their own safety first. If the employee feels the location or timing of a business meeting is unsafe or suspicious, the employee should be able to use good judgment to cancel, reschedule, or make other arrangements.
- Have your employee register with STEP. This is the Smart Traveler Enrollment Program through the U.S. Department of State (https://step.state.gov) which provides a number of benefits enhancing the safety of your worker. The nearest U.S. Embassy or Consulate will provide important information about safety conditions in the destination country. It enables the Embassy to contact the registered traveler in an emergency (such as natural disaster or civil unrest) and can help family and friends reach the individual in case of emergency.
An employer cannot eliminate all of the risks associated with an international assignment, such as political unrest, terrorism, disease, kidnapping, or even auto accidents. To this end, an employer should have the employee sign an acknowledgment assuming the risk of the assignment. Work with competent legal counsel to create a provision specific to your needs.
I’ve a Feeling We’re Not in Kansas Anymore.
When I looked up the alleged beaches of Dubai, my research pulled up several hits just outlining the rules to follow if you wish to frolic or bask on their sandy shores. Before sending your employee off to another country, you should consider establishing a relationship with reliable local counsel who can guide you and your employee through any legal hurdles he might encounter. Depending upon your business, local laws relating to the taxation of goods and services or customs regulations may be important to know. The country’s laws against bribery may be necessary for some employees to know. Thus, it is vitally important to know the details of the employee’s anticipated work so that local counsel can properly advise you into compliance.
Training is the Ticket
The unknown can be scary. Take as much of the unknown away by training your employee in advance of an international assignment.
- Make sure your employee has all of the necessary authorizations and visas for the trip, and teach him how to present himself and his documentation to immigration authorities and what to expect.
- Train your employee on local customs, business etiquette, attire, and similar matters specific to that region/culture.
- If your employee does not have the language of the destination, make sure that he knows some key phrases (¿Dónde está el baño? Où sont les toilettes?), as well as the address and phone number for his hotel, the U.S. Embassy, the local hospital, and that he has a geographical understanding of the vicinity in which he will be working.
And the List Goes On . . .
Depending upon the nature of the assignment and how long it will last, you may want/need other legal arrangements in place. Your risk assumption acknowledgment may be only one piece of a larger contractual arrangement. Will you be sharing the employee with another employer? Will there be hazard pay? What are the expected working hours the employee must keep? Which country’s holidays will be observed? In which country’s currency will salary be determined, or what exchange rate will be used?
Lastly, employers need to consider data privacy concerns. If your employee will be using a smart phone or laptop to conduct business in another country, you want to make sure your data is properly encrypted. You should also have a plan in place should the employee lose or have stolen a laptop, phone, or other media containing confidential data. The country in which your employee is working may have laws with certain reporting requirements for data security breaches, so know those too.
This has been my 10,000 foot View of things to keep in mind when you send your employees abroad. We live in an age of information, and the more you know up front, the less likely you are to trip up later.