In this episode of All Things Work, host Tony Lee speaks with Donald Dowling Jr., a labor attorney at Littler Mendelson P.C specializing in international employment issues. Dowling shares what employers need to know and prepare for when sending employees overseas, along with practical advice for employers and HR professionals dealing with international workforce issues. This episode is sponsored by Safeguard Global.
Whether by assignment or by personal choice, employees sometimes live and work in a country different from where their employer is headquartered, which presents additional challenges and considerations for employers. In this episode of All Things Work, host Tony Lee speaks with Donald Dowling Jr., a labor attorney at Littler Mendelson P.C. specializing in international employment issues. Dowling shares what employers need to know and prepare for when sending employees overseas, along with practical advice for employers and HR professionals dealing with international workforce issues.
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This episode is sponsored by Safeguard Global.
Speaker 1:
This episode is sponsored by Safeguard Global. Do you want to hire remote workers abroad? You can start today with Safeguard Global. Safeguard Global acts as an extension of your HR team, helping you grow into new markets with ease. Hire, onboard, and pay employees in over 170 countries around the world. Get top talent like a local with Safeguard Global. Learn more at safeguardglobal.com.
Tony Lee:
Welcome to All Things Work, a podcast from the Society for Human Resource Management. I'm your host, Tony Lee, Head of Content here at SHRM. Thanks for joining us. All Things Work is an audio adventure where we talk with thought leaders and tastemakers to bring you an insider's perspective on all things work. Today, we're discussing Americans working abroad and what their employers need to know and prepare for. For many years, overseas postings have carried a certain glamour and elite status, whether it's executives who bring American-style ingenuity to a developing market while making profits for their employer and cross-cultural friendships along the way, or even a first-time expatriate who's able to afford a beachside rental in a less expensive foreign locale. But the adventure is not without its challenges, with both the employer and the traveling worker forced to navigate cultural differences and legal issues. Joining us today to talk about global employment is Donald Dowling, Jr., a labor attorney and shareholder at Littler in New York, where he specializes in international employment issues. Don, welcome to All Things Work.
Donald Dowling, Jr.:
Thank you, Tony and SHRM, and thanks for this great opportunity. It's exciting to be part of this.
Tony Lee:
Yeah, we're happy to have you. So I'm not sure our listeners know this, but more than 9 million Americans are living and working overseas, a number that's almost tripled over the past 25 years. So why don't we start with you sharing why you think that number is growing so quickly?
Donald Dowling, Jr.:
Okay. I guess there's a number of components, but one is just the old cliché of the world is flatter, the world is getting smaller, I think. I remember, I'm old enough to have been traveling internationally into Europe in the sixties and seventies a lot, and back then it was just more unusual just to be leaving somewhere in the Midwest and taking a trip to even Europe. Nowadays, people of all ages do that. I just think that the rate of international travel and the number of flights and seats on those flights has just exponentially grown. And that's just, I guess, the travel industry itself. Maybe even part of that's deregulating the airlines, et cetera.
But also in the work context especially, we've got the tech issue that you can now work remotely, whereas before you couldn't, and people work all the time in one country for an employer in another country or working on tasks in another country. And in the old days, that just literally didn't happen. It used to be if someone had personal reasons why they had to move countries, if their mother was sick in India and they had to go back to India, or if their spouse was transferred to France for some three-year assignment in France, the people would just have to quit. Nobody even thought about the concept that they could possibly continue working the job that they had worked in, say, the US if they had personal reasons to move abroad.
But now that's very different. Now it's almost the expectation has flipped on that, and people will almost expect that, especially if they're working remotely in the US, they'll definitely expect why can't I just do the job from overseas? And even if they're reporting into an office in the US, if it's the type of job that might be worked remotely, they'll often approach their employer and say, "Look, I'm moving abroad for personal reasons, but I could do the job." And then I guess, compounded on that are the expatriates who are sent abroad by the employer, but that's of course a different scenario.
Tony Lee:
Yeah, yeah. Great explanation. I think people do feel comfortable working essentially anywhere in the world, but they do tend to fall, when we're talking about Americans who are working abroad, into three categories. So those three are the assigned worker who's the person who is basically sent by their home company to go work in a foreign office. Number two's the wandering worker, the person who wants to work abroad and cuts a deal with their US-based employer to work abroad. And then number three is kind of the freelancer independent contractor who can essentially do whatever they want. So since that third category manages their own legal and cultural adjustments, let's just focus on the other two for this conversation. So why are there more assigned workers? Why are there more wandering workers? And what do companies need to do to prepare for these folks?
Donald Dowling, Jr.:
Okay. First, just for thoroughness, I want to add, in my view, there's a fourth category that we probably don't need to talk about much, but I want to throw it out there. And that's just the emigrant, spelling that with an E, emigrant, the American who leaves. I think of that first because in my family I happen to have that. My stepfather, he was from Buffalo, New York, but he moved to Spain in the early sixties and my mother married him and moved to Spain in '73. And my mother still lives in Spain. She's an American emigrant who left the country. My daughter, by the way, five years ago, left. She went to college in St. Louis, but she's been living in Amsterdam, working for a local Dutch company. She's not an expat or anything. She just is an American who got up and moved to Amsterdam and lives in the Netherlands and works as a local immigrant there, from the Dutch point of view, an immigrant. So there's those as well. And we've had those for a long time, as I've had with my stepfather having left in 1961, I think.
But as far as the two we're talking about here, interestingly, I'm not sure whether there's been been a big statistical uptick in what I call expatriates. Those are the assigned workers who the company taps and asks to go work abroad. By the way, the definition of a business expatriate is someone who's working in one country, say the US, and the company asks them and sends them to work temporarily in the second country, but with the expectation that they'll repatriate home. If there's no expectation of repatriating back in the future, that would be an international transfer, not an expatriate assignment.
We've always had expatriate assignments. In the old days, there was more structure to them and there was more of an expectation that people would get more benefits and things. But obviously we still have a lot of expatriate assignments. But as far as per hundred workers or per thousand workers or however you might measure expatriate assignments, they're still common and they're no less common. But I'm not sure they're any more common than they used to be because for some reasons the tech might allow some companies to service their... Let's say, it's a multinational with operations in 12 countries. And in the old days, they may have had from time to time a need to send an expatriate to go work in one of those countries for three years and then come back.
But in the old days, because of the lack of the technology, you could make a case that it was more necessary to send people on expat assignments. Whereas now you might be able to get some of the work done that an old school expat would've had to do by getting on a plane and moving to the other country for a few years. Now they can be serviced remotely. And you've got a lot of examples, for example, of people who work in one country but report to a supervisor in another country. So I think we have a lot, at least my observation is while we still have lots of international expatriate assignments, my own wife had a three-year one recently, my sense is that they haven't really been a big growth in them. They hold steady and the technology might even keep that number down, but then other factors of more integrated international, multinational operations might push that number up. So we still have those.
But then as far as what we're calling the wandering workers, those tend to be people who are telecommuters, who are working from home anyway, and they can get up and go work in another country as long as they can talk their boss into it. Or actually, there's some examples where people slip off to another country without even telling their employer, and the employer finds out through some other way. Sometimes their tech department finds that the person's been logging in from Sweden or something for the last eight months.
But those, what we call wandering workers, who are people who the only reason they're in the foreign country is for personal reasons to them as opposed to business reasons for the company, which is the expatriate, we've been seeing those for the last 10 or 15 or 20 years. But obviously with COVID, there was a huge uptick in that because that's when so many more people who previous to COVID worked an office job and had to report into the employer's work site. But because COVID put all those people on work from home telecommuting, some percentage of that, maybe it's even only one or 2%, but still we're talking so many hundreds of thousands or millions of workers, that ends up being lots of people, started moving to foreign countries or at least taking long trips for several months to foreign countries for various personal reasons.
Tony Lee:
So let's talk about probably the crux of this issue, which is for HR professionals who are listening to this and anyone who's really helping to facilitate someone who's working abroad are the legal issues. And they tend to fall into four categories for workers who are abroad. The four are employment visas, the wide range of local employment laws, which often includes at-will employment in many countries, payroll laws, and then duty of care, which is the responsibility to an employee who's injured while working abroad. In other words, the employer is responsible for that employee should they get hurt, injured, killed, anything like that while they're abroad. So there are legal challenges for all four. Let's go through that. So let's start with employment visas. How big an issue is that, especially for wandering workers? You mentioned the person who's working abroad and the employer doesn't even know. I guess the employee doesn't bother with getting a work visa because they're working for a US company. So what's your take on visas?
Donald Dowling, Jr.:
Okay, first, just for context, I think we're talking both. We're simultaneously talking about expatriates who the employer sends abroad for a while and these wandering workers who go abroad for personal reasons, but we're not talking about people who are just locally hired in that foreign country or independent contractors or any of those. Okay, with the visas, great question. And here there's a big split in my answer. When it's an expatriate, the employer almost universally, almost always has to, for obvious reasons, help the employee get the visa. Sometimes they don't need a visa because they happen to be a local citizen.
For example, the company's opening a new facility in Greece and they happen to have a Greek employee who speaks Greek and his mother still lives in Greece or something. That person sometimes is more likely to be chosen to be the expat because he speaks the language, and I'm making, it's a hypothetical here, but they might send them, and if that person happens to be a Greek citizen, doesn't need a visa. But every other expat situation, the expat does not have the visa and of course needs a work visa because it's going to be working in the country. So it's not just a residence visa. In some countries, a visa is separate from a work permit. But the company, of course has to provide the visa because they're the ones who need the person to be in the country.
And so as part of the expat process and package in getting the person into the country, they get a visa that you almost always need to work with a local immigration lawyer because immigration law is quintessentially local. And so if you're sending someone to Greece or to Argentina or to China, you need to work with a Greek or an Argentine or a Chinese immigration lawyer. In some countries, they're not lawyers, they're non-lawyer administrative type jobs, but the people who facilitate visas. So in the expat situation, the visa's essential and the employer is responsible for it.
In the wandering worker situation, there's an interesting answer there, which is if the US employer is going to... Remember, by definition with the wandering worker, the employer doesn't really want the person to be working in the foreign country. Let's say the person's based in Atlanta but is a telecommuter in Atlanta and wants to go work in India or France or Sweden or Brazil for personal reasons. Sometimes the employer's going to say, "No, your supervisor needs you to come to meetings, or if the time zone difference is too far and we're not going to let you do that." But if the employer allows the person to work in that country, then you get the question of the visa. And again, sometimes it's somebody who's going back to their home country and they're already a citizen, so you don't need a visa. But in the other situations, the person needs a visa and needs to check whether they need a work visa or not.
Interestingly though, there's kind of an awkward discussion around this, but I've talked to immigration lawyers in other countries, and I'm about to make a broad generalization about all the countries of the world and all the scenarios. And anytime you make a generalization that broad, there's exceptions. This is a pretty darn good generalization I can make, and that is if a company is allowing a wandering worker to go to a country, at least a country where the company does not have operations. So let's say it's an American company in Atlanta and they're allowing the person to go to France, but the company doesn't have any operations in France. The person certainly needs a visa to live and work in France. But they can ask the wandering worker employee to just tell them, confirm that, yeah, they'll work legally, they'll have the visa. There's very little real world, or it's very hard to think of a real world scenario where the employer would ever get in trouble for that. And I'll use the concept of I-9 just to make the point.
Remember, it's the employee who's in France under that scenario, and the French government wants the employee to have the visa. But if the employee goes in illegally without a visa and gets caught, they might get deported, they might get fined, they might get in trouble, but that would be on the employee. There's almost no scenario where the French government would go after some American company on an I-9 type theory, meaning the employer's responsible for the visa, because in that case, the employee is in France for personal reasons, and the employer has no business reason to send them in there. And the employer probably has no local operations or assets in that country. And the way immigration shakes out is they would, again, deport or find the person or both, but the employer doesn't have to lose much sleep at night over the visa situation of the wandering worker employee because at worst, the person will get deported, kicked out, and will come back. And that would solve all the employer's problems because now they'd have to come back to Atlanta.
Tony Lee:
I'm sure they'd prefer that. [inaudible 00:14:18].
Donald Dowling, Jr.:
Yeah. So that's why visa's a very interesting discussion that's different between an expat and a wandering worker.
Tony Lee:
So let's move on to the local employment laws. And I'm most interested in the whole idea of at-will employment because in the US, you could fire an employee for non-performance for a lot of things, but there are many countries where that's not possible, right?
Donald Dowling, Jr.:
Right. In fact, I'm pretty sure to say all countries. I can't think of a country that's purely at-will employment. Singapore used to be close, but they tightened up their laws in that. Used to think Nigeria was close, but it's not an employment at-will country. Certainly, I think it's safe to say there's employment lawyers around the world in every country on earth besides US will say we're not an employment at-will jurisdiction. Again, some countries like Singapore and Nigeria get a little closer, but we're really the only employment at-will jurisdiction. And not having employment at-will not only means that you can't fire people unless you follow the law and pay severance pay and notice and stuff unless you have good cause. And good cause is a very high threshold.
But other countries' employment laws when they're not employment at-will tend to add a lot more rules. And the good examples are they have mandatory vacation, mandatory paid leave, not unpaid leave, mandatory paid leave, mandatory paid holidays, and they also impose caps on hours, not just after a certain number of hours a week you have to pay overtime. But in France, after 36 hours, I think it's down to 35 hours now, you can't assign work at all subject to some exceptions. So in non-employment at-will jurisdictions, which means everywhere on earth except the US, you have these rules around firing plus all these other rules that we're not used to, like the paid leaves and the paid vacation and caps on hours and stuff. And the short answer is unfortunately, theoretically, no matter how you ask your employee to sign it, obviously everybody wants to say, "Okay, but if you're going from the US to go work in Germany for a while, you have to agree that US law applies to you."
And US law would apply if someone's just passing through Germany for a few weeks. But if their place of employment shifts to Germany, and I'm picking Germany as an example, any other country on earth this would be true, if they're going to be working there for most of a year or several years or something, whether they're an expat or a wandering worker, the local law applies by force of law. You can't opt out of it, and therefore a US choice of law clause won't be enforceable and you can't shut off local law. And people think, "Oh, is that true? How could that be?"
But I'll say it works that way in the US too. Imagine, for example, if a Mexican bank had a Mexican employee who wanted to work in the US and they agreed to let the Mexican employee work in the US. And then all of a sudden he's now working in Houston, and if they continue paying him, let's say it was an entry level worker who's earning minimum wage in Mexico, minimum wage in Mexico is lower than minimum wage in the US, if they're paying him now, but he's working in Houston, Texas instead of Mexico, we all know instinctively that you don't need a law degree to know you can't pay him $2 or $3 an hour, whatever the applicable Mexican minimum wage is, because he's working in Texas. Minimum wage laws you can't opt out of. And if you sign an agreement that says, "Mexican law applies to my employment relationship," that doesn't work either. You have to pay the minimum wage of the place where you're working.
And that concept, I used minimum wage as an example, but in these other countries that's true for the laws on overtime and caps on hours and holiday and vacation and severance pay and notice pay and all that. So for that reason, the local laws apply in these countries, but often, especially in the wandering worker scenario where the person's going to the foreign country and the employer is allowing it as a favor, often the employee's not going to rock the boat and insist on rights under local laws. So you don't see too many disputes come up.
But where I have seen them is where the person wants to go on leave, and I call this the no good deed goes unpunished scenario, where the employer lets the person work in France for personal reasons. They say, "We don't want you to do that, but you're a valued employee so we'll allow you to telecommute from France." And all of a sudden the person gets pregnant and wants to go on maternity leave and wants to get all the French pregnancy leave rights, which are much richer than the law under the FMLA in the US. And the company says, "That can't be right. We didn't even want them in France. Why do we have to pay all this French maternity leave?" But you have to because you can't shut those laws off, even with a choice of [inaudible 00:18:28] laws, as my example of the Mexican minimum wage shows.
Tony Lee:
Yeah, well, it can be a real quagmire. Okay, so you talked about payroll issues. Let's talk about duty of care, which is so important. The company is essentially responsible for the employee who is injured, is harmed in some way working somewhere else. What does HR need to know about that?
Donald Dowling, Jr.:
Okay. Duty of care is really the personal injury scenario where the US employee who's working abroad gets injured out in the field in the foreign country. And there too, we have a big difference between an expatriate and a wandering worker. There's case law that goes back decades into the 1940s and even before about the scenario of an American employee who's on either an international business trip or an expatriate assignment who gets injured, steps outside the US workers' comp system and therefore sues the employer in an uncapped personal injury claim. And there's lots of strategy and ideas around what to do in that scenario that I can discuss it with anybody who's interested in that, in the expat or business traveler context.
Good news though, is sometimes that question comes up in the wandering worker scenario, and there the analysis is different and I'll generalize, but to generalize, there's very little risk of a real world duty of care claim. Because if someone says, "Hey, I want to move to China for personal reasons," and you let them move to China and telecommute, it's highly unlikely they'll be injured in a scenario where they can bring a claim to say it is because of their job and it's an employment related claim. Because in that scenario, the entire reason the person is in China is personal, and it's more analogous to getting injured on a personal vacation trip or a ski trip or something. Even if you work during a ski trip, if you break your leg on the mountain skiing, you're never going to bring a workplace injury claim and therefore the employer, again it's a generalization, but owes very little, if any, duty of care to wandering workers who are in a foreign country for personal reasons.
Tony Lee:
Yeah, that's great, Don. Well, unfortunately, as good as this has been, we've run out time. I feel like we've put 20 pounds of information in a five pound bag, but I really appreciate you doing that. I do want to add too, for folks who want more information, on shrm.org, we have an entire section on employment law as it impacts global employees, and we've just launched a brand new interactive tool with international employment law in 27 different countries. So SHRM folks can go in and look that up and get that information.
So a big thank you to Don Dowling for sharing his insights on managing global employees. And before we get out of here, I want to encourage everyone to follow All Things Work wherever you listen to your podcasts. And listener reviews have a real impact on a podcast's visibility. So if you enjoyed today's episode, please take a moment to leave a review and help others find the show. Finally, you can find all of our episodes on our website at shrm.org/podcast. Thanks so much for listening, and we'll catch you next time on All Things Work.
Speaker 1:
This episode is sponsored by Safeguard Global. Safeguard Global is a boots-on-the-ground HR partner, so you can hire, onboard, and pay employees in over 170 countries. Whether you're looking to hire a remote worker in a specific country, or expanding your global workforce into new territories, with Safeguard Global, you can hire workers quickly and compliantly, streamline onboarding, and gain data analytics insights, all with local HR support. Hire top talent anywhere in any way with Safeguard Global. Learn more at safeguardglobal.com.