Lawyers International Network for Employees and Executives (LINEE)

Expatriate Employees

Wendi Lazar and Cody Yorke Discuss “New Expatriate Employees” in Reuters Legal News

by

Nearly two years have passed since nations began closing their borders to control the spread of COVID-19 among their local populations. Working remotely in foreign countries made it easier for many employees to take care of families, home-school their children, and be with faraway relatives. Now, what may have initially been an experiment or stopgap measure has become the preferred work-life existence for these expat workers.

But making a temporary international remote work arrangement a permanent situation poses legal consequences affecting compensation, income taxes, job benefits, and healthcare. Multinational workers and their employers need to know their rights and responsibilities, which can be difficult without knowing if the host countries’ or home countries’ laws apply to their employment relationships.

Outten & Golden partner Wendi Lazar and associate Cody Yorke routinely counsel clients on expatriate employment issues. Reuters Legal News recently published an article in which they discuss the issues remote workers and employers should consider when contemplating remote work abroad. Read more.

Relocation of Executives: Benefits of a Competitive Package

by

In a globalized world like ours, job-related relocations are a daily occurrence, but do we really know all the processes behind them? This article aims to help the reader to have a better overall view on the matter. Given that relocation occurs when an organization moves employees from one location to another, let’s analyse the basics of an effective relocation program. Here we will focus on the relocation of executives.

Hiring talented professionals for executive positions is one of the biggest challenges companies face today. “Failure to attract and retain top talent” was the number one issue in the Conference Board’s 2016 survey of global CEOs, even before economic growth.

The most crucial aspects to consider are policy development, communication issues, legal issues, and economic factors. Human resources professionals must offer competitive relocation packages and effective relocation practices and policies to attract talented managers. Relocation assistance can also help companies to retain current executives by giving them career development opportunities and simultaneously advance business development and operations by ensuring the right manager is in the right place at the right time. A well-designed relocation program complements an employer’s talent management program. If a relocation is not handled successfully, it threatens the employer’s ability to retain the manager, and it risks losing someone the employer has devoted time and money to develop and move. Read more.

Litigating Expatriate Employee Disputes – Where to Sue and Under Which Laws?

by

Executive expatriate or secondment assignments offer career advancement, cultural awareness, and global business perspectives. Like any other work environment, employer-employee disagreements arise, and when issues cannot be resolved amicably, the parties may resort to formal litigation.

But as companies expand, relocate, merge, acquire, restructure, and divest, where to litigate workplace disputes and under what countries’ laws can change, contrary to provisions that many have been spelled out in an executive employment contract. For the expat, understanding enforceability, choice of law, forum, and venue is essential when weighing one’s options for seeking redress in the courtroom.

Choice of Law: Home Country or Host Country?

Every employment agreement should have a provision binding both the employer and expat employee to the specific sovereign law that will be applied if a dispute occurs. Sometimes, a single choice-of-law provision may govern all aspects of the expatriate agreement. In others, different national, state, provincial, or local laws may govern different clauses in the contract. Much depends on the governing law in the host country regarding a particular issue, and under what circumstances the host country will recognize a choice-of-law provision. Read more.

Pandemics are Global, Work Cultures Are Not

by

The COVID-19 coronavirus pandemic has proven beyond a doubt that economies and workforces are global. During the past few months, unemployment has increased by an alarming rate. Those employees who still have work have had to make sacrifices as they shift to telecommuting and try to remain productive during a tumultuous time. In case there was any lingering doubt, 21st-century companies depend on global markets in order to survive. This said, it is critical for businesses to understand how different cultures shape international and cross-cultural work.

This paper will outline how differences between Italian and American cultures have led to the creation of divergent work styles, how new methods such as smart working or telecommuting have been implemented within the U.S. and Italy, and what those differences mean for life after the coronavirus pandemic.

Work Culture in Italy and the U.S.

It comes as no surprise that European and American cultures are vastly different. The cultural contrast between Europe and the U.S. are apparent even when it comes to work-life balance. A 2012 report conducted by the European Union revealed that not only did Europeans tend to work fewer hours than Americans, but their most important personal values were health, followed by love, and finally work. This deeply contradicts U.S. cultural values. Read more.

Working From Home in France After COVID-19

by

The current COVID-19 crisis has had consequences on employment conditions in France. Before the pandemic, working from the company’s premises was the rule, while working from a home office was the exception.

Over the last few years, there has been an emerging trend in favor of home offices, facilitated in particular by transportation strikes, the need to save on office rents, and other factors. The coronavirus pandemic has accelerated this process. Overnight, most employees have had to work from home, and companies had no choice but to adapt quickly to this situation.

Once operations return to normal, companies willing to implement or permanently facilitate remote working will have to comply with the following rules: Read more.

Expats and COVID-19: Global Employees at Risk and in Limbo

by

The coronavirus has hit multinational employees hard in every part of the world. U.S. expatriates living abroad and E.U. expats working in the U.S. have been subject to travel bans, embassy closures, shelter-in-place orders, widespread work shutdowns, mass terminations, and furloughs on both sides of the pond and around the globe. New laws and regulations in their home and host countries offer substantive benefits for employees who are forced to work remotely, caring for sick children and family members, or caring for themselves if struck with the COVID-19 virus.

Figuring out if and how these laws apply can be daunting to expatriate workers at all levels. Having legal employment counsel involved in helping to make decisions as well as coordinating the expats’ legal and financial needs with other professionals is key.

Immigration Challenges

Immigration regulations in the U.S. and most of Europe are at a standstill, with no incentive for governments to change the status quo because of the high unemployment rates affecting their own citizens. U.S. embassies in many countries have closed and have stopped processing visas outright. Read more.

Labor & Employment Considerations in Italy Post-Brexit

by

On 31 January 2020, the UK officially left the European Union. In the next year, some of the UK’s labor and employment policies will change, posing new considerations for employers and employees alike. Until 31 December 2020, the UK will be in a “transition period” where current EU legislation will still apply until the UK has negotiated new agreements with the EU. This document outlines how employment rights for UK citizens living in Italy will be impacted both during and after the transition period.

Italian Immigration and Visa Requirements

British citizens wanting to work in Italy should be aware of the imminent changes to immigration and visa processes that will soon occur. During the Brexit transition period, it is suggested by the UK government that UK citizens living in Italy make sure their passports are valid and registered with their local Italian municipality.

Different registration documents exist depending on one’s status within Italy, and British citizens should obtain the documents that best define their status in Italy. These types of documents are below: Read more.

10 Key Things You Need to Know Before Coming to Work in Italy

by

If you are considering relocating to Italy for a job opportunity, you need to understand the differences between Italian employment laws and employment protections in your home country. Below are ten essential points to assess before you enter into an employment contract, starting with a fundamental matter: make sure which law applies to your employment agreement.

Which Country’s Laws Govern the Employment Relationship?

Pursuant to the Convention of Rome of 1980 and the EC Regulation of 2008 Rome I, the law that the employer and employee select governs their employment contract. If there is no mention of a choice-of-law provision, the applicable law is that of the country in which the employee carries out his work duties or the country in which the office responsible for hiring the employee is located.

Despite the rules described above, if there is a closer connection with another country, the law of that country will apply. “Closer connection” could be defined by such parameters as the residence or domicile of the employee or both parties, the employer’s decision-making center, the language and form of the contract, the currency used for remuneration, and the place of payment. Read more.

10 Key Employment Considerations for U.S. Employees Working Abroad

by

Statistics from the U.S. State Department indicate that more than nine million U.S. citizens live outside the country, a large percentage of whom expatriated for work reasons. Whether for career advancement, corporate transfer, or the opportunity to live and travel in a foreign country, international employment is common in our global economy. If you’re thinking about an overseas posting, you should address some critical issues with your employer before you take the job.

Employment Contracts

First and foremost, your rights, protections, and obligations should be set forth in an employment agreement before you accept a position overseas. You may have previously entered into an employment contract for a U.S. job subject to the laws and regulations of the U.S. and the state in which you work; but expat contracts also must address the local rules and customs of your new workplace. Make sure the agreement is in writing and clarifies essential elements, such as the job description, work hours, place of work, compensation, termination rights, and other issues addressed here.

Duration of Employment

Defining how long you will spend in an international posting allows you (and your family) to plan ahead and establishes a mutual expectation with your employer. This is especially important for employees who expect to return to jobs in the U.S. when their assignments end. Read more.

Moving to France: Top 10 Points to Guide You on Your Journey

by

Moving to a new country can be a whirlwind experience, with so many different issues to consider. To help with that process, below are ten key points relating to your employment if you are thinking of, or are in the process of, moving to France to work.

Ensure Your Contract of Employment Is Written

  1. Most employees are legally entitled to a written statement of the main terms and conditions of employment. When moving to France, you should seek to finalize all contractual terms before you agree to move. It is important to try to agree on practical terms such as rental costs, travel allowances, children’s education, and other specific provisions – and to have them all set out in your contract of employment. Your contract should also set out what will happen when your contract terminates. Will you return to your home country and have all relocation costs covered? Will you return to your previous job? Will you be made redundant? This should be carefully considered and clearly set out in your contract of employment.

Check If Your Contract Is Subject to a Collective Bargaining Agreement

  1. It is very important to check if a collective bargaining agreement applies to your contract as the rules laid down by the Labor Code and the Collective Bargaining Agreement which applies in the company govern the drafting of the employment contract and in particular clauses such as wages and benefits, status and classification.
  2. Regarding wages and benefits, it is important to check if the employer is in compliance with the minimum wage requirements and if there are employee savings schemes in the company such as incentives, profit-sharing, company savings plans.

Check the Validity of Some Specific Clauses

  1. Even if you don’t think about it yet, you will have to leave your job one day. That is why you should read each of the clauses of your employment contract and check if it contains a non-competition clause. This does not have any effect during the contractual relationship. But it produces them on the occasion of the termination of your contract and not the least! By signing an employment contract containing a non-competition clause, you undertake, when you leave, not to engage in a new activity competing with that of the company. This clause, therefore, minimizes your chances of finding a job. In France, there are rules that govern the validity of a non-compete clause (especially, the employer must pay a non-compete allowance. This indemnity can be subject to negotiation before the signature of the employment contract).
  2. Your employment contract also sets your working hours. Your employment contract may indicate that you are subject to or deviate from the collective working time and practice individualized working hours. Flat-rate pay agreement covering days worked or hourly clauses may also be proposed to you and, under these conditions, you do not have to comply with collective working hours. In any case, it is necessary to pay particular attention to the drafting of this clause.
  3. The mention of the place of work in your contract is for information purposes only, unless it is stipulated in your contract, by a clear and precise clause, that you will perform your work exclusively in that place. Otherwise, you may work in another workplace. Clauses relating to mobility can be drafted also and the French Labor Code does not validate them all. Particular care should be taken regarding this provision.

Understand Your Protection from Dismissal and Your Obligations from Resignation

  1. An employer can only dismiss an employee for a real and serious cause or economic grounds. If the dismissal is an unfair dismissal, you’ll be entitled to damages calculated in consideration of your seniority in the company.
  2. If you decide to resign, be aware that there is a notice period that you have to comply with, which varies according to the applicable Collective Bargaining Agreement. If you do not comply with it, you may be liable to pay damages to your employer.

Understand How Social Protection and Taxation Works

  1. Employees must pay tax on their income and it is deducted at source by the employer. If you are not a tax resident in France, you have to refer to the applicable international tax treaty.
  2. A foreign employee who works and resides in France is, in principle, subject to French social protection legislation, regardless of his nationality and the place of establishment of his employer. If you are seconded to France, you can, however, remain affiliated to the social security system of your country of origin if there is a social security agreement between your country and France. In any case, it is better to check the validity of your employment contract with a professional.

Karen Durand-Hakim
Attorney at Law

Non-Competition Clauses and Preliminary Contracts in Germany

by

High-level performers significantly contribute to their employer’s business. Because of this, employers frequently include non-competition clauses in employees’ preliminary employment contracts to control their behavior and activities after they leave the company.

With post-contractual non-competition clauses, companies aim to protect themselves against the risk that departing employees who later work for competitors might use valuable knowledge about operations, trade secrets, financial information, or important business contacts to gain an advantage.

Enforceability of Non-Competition Agreements in German Labor Courts

In Germany, labor tribunals carefully check preliminary contracts to determine whether non-competition clauses overly restrict employees from pursuing their careers or professional activities, but that doesn’t mean such agreements are unenforceable. Read more.

The Right of International Employees to Bring Employment Claims in the United States

by

For employees who work in or have connections with several different countries, it can be difficult to figure out which country’s laws and courts offer protection in an employment dispute. In some cases, the employee may even have a choice between different jurisdictions.

This factsheet summarizes the key issues involved in deciding what rights or claims an international employee may have in the United States (US). Please note that while many aspects of US employment law are governed by federal laws, many important aspects vary considerably state-by-state. Thus, an employee’s overall position will often depend on the state of employment.

Introduction

In the US, federal, state, and local statutes regulate the employment relationship, as well as common law principles that govern issues related to contracts, torts, and fiduciary duties. The extent to which an employee can bring a claim or have legal protection in the US will depend on the type of claim involved and where the claim is being brought. Read more.

Freedom of Dismissals Under Italian Statutory Law

by

Due to their role as alter ego of the employer, in Italy, executives are subject to different and less protective statutory rules compared to regular employees. This difference is quite evident in the legislation about dismissals.

In fact, while Italian statutory law generally provides that in order to dismiss an employee the employers must prove that they have fair reason to dismiss them, – when it comes to executives the employer is not obliged to provide proof of just cause. This means that, as a rule, executives can be dismissed freely (otherwise referred to as an ad nutum dismissal).

Moreover, if the dismissal is based on a very serious reason which is able to break the “bond of trust” between the employer and the executive (in Italian this concept is referred to as ‘giusta causa’ or ‘just cause’) then the employer is exempt from giving the executive a period of notice and is also exempt with paying the executive a sum in lieu of notice. Read more.

Need to Know: Executive Dismissals in Italy

by

When does Italian law govern an employment relationship? When will the Italian courts have the power to hear your employment claim?

The first issue is to consider what the applicable law of your contract is. This is often set out in your employment contract.

Generally, the parties to a contract have the freedom to choose the applicable law, but in reality, it will be the employer that often chooses. That choice will often be the country’s laws that are most favourable and convenient to the employer. Read more.

International Executive & Employee Dismissals in Italy

by

International executives and employees who work in, or have connections with, a number of different countries may have difficulties understanding which nations’ laws and courts will offer them the correct protection in case there is an employment dispute.

In some instances, international executives and employees may even have parallel legal protection in a number of different legal jurisdictions simultaneously.

If you travel frequently for your work or are regularly engaged in overseas business – your employment relationship may not be limited to your country of residence. Instead, it may also be tied to the countries where you conduct business as well as to the nation where your employer is headquartered. Read more.

Fair Bonus Treatment for International Executives: Making Sure Everybody Gets Equal Treatment

by

Bonuses have become a very important element of how many international executives are paid. Some are guaranteed and paid across the board to all staff; others are discretionary and based on individual performance.

Problems can arise when the criteria for payment of UK bonuses lack transparency or are discriminatory. For international executives who have a sufficient connection with the UK, the UK discrimination laws are there to protect you from detrimental treatment by your employer.

How Can Discrimination Occur?

If your bonus is based on individual performance, it can be directly related to the amount of profit or business that you create. However, you could be prevented from earning that profit or business because of discriminatory treatment by your employer. This could involve being excluded from marketing events with clients or important meetings; being excluded from communications; not being passed new opportunities etc. Read more.