Presented by:

Grant D. Petersen, Esq.OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.100 North Tampa Street, Suite 3600, Tampa, FL 33602(813) 221-7231 (dd)/(813) 220-7318 (c)/(813) 289-6530 (fax)Grant.petersen@ogletreedeakins.com www.ogletreedeakins.com

MANAGING A GLOBAL WORKFORCE

EXPATEMPLOYEE

GERMANSUBSIDIARY

OFFSHOREto

CHINA

SALES REPBRAZIL

U.S.,INC.

Brazil Sales Representative

• Highly recommended by government customer

• Signed Company’s U.S. I/C agreement

• Company changed rep’s territory

• Sales rep terminates contract and sues for severance

• Company’s U.S. facility raided by the FBI

• WHAT HAPPENED?

Brazil Sales Representative

• Independent Contractor v. Employee

- Presumption: individual is an employee

* Entitled to all statutory employee rights

* Company has tax presence in Brazil

- Use staffing agencies or require rep to incorporate

Brazil Sales Representative

• Tailor contract to meet commercial agent law- 90 day notice of termination for indefinite contract- Sales rep can terminate if services reduced- Sales reps entitled to an indemnity of 1/12th of total remuneration received upon termination

Brazil Sales Representative• Foreign Corrupt Practices Act:

- U.S. company, individual, or foreign subsidiary;- Offering or authorizing payment of $ or anything

of value;- Directly or indirectly- With a corrupt intent- To a foreign official, political party or candidate

(Includes “SOEs”)

• Sieman’s paid $1.6 billion in FCPA fines for failing to conduct due diligence

Brazil Sales Representative• Establish an Anti-Corruption Compliance Program

- Conduct a baseline risk assessment- Assign managerial and governance responsibility- Establish corporate policies- Communicate to and train all stakeholders- Obtain certifications of compliance- Develop 3rd party and M&A due diligence checklists- Develop contract provisions for third parties- Develop a reporting mechanism- Conduct periodic compliance reviews

Offshore Business to China

• Decision: offshore department to China• Most employees will be laid off – some will be transferred to other jobs

• Employees informed when deal closes 30 days later• Employees provided with severance agreements with a release of claims

• 1/2 of the laid off employees sue• Chinese workers sue the Company for personal injuries at work

• WHAT HAPPENED?

Offshore Business to China• Comply with employment discrimination laws & OWBRA

• Remember to WARN – 60 days

Investigate Trade Adjustment Assistance

• Watch out for Alien Tort Claims Act:- Aliens can bring a civil action in the U.S for a tort violating international law- No employment relationship is necessary

Expat Assignment

• Female executive sent to German subsidiary• Signed U.S. employment agreement (at-will employment, expat benefits, noncompete clause)

• Harassed by 20 year German, male employee• Company fires male employee• Female quits and begins work for a competitor• Female files sexual harassment charge with the EEOC• Female sues Company for vacation days• Male harasser sues the Company• WHAT HAPPENED?

Expat Assignment• Legal Issues Regarding Expatriate Agreements:

- Choice of Law and Jurisdiction – Host country

- Term of Agreement – no at-will

- Mandatory vacation, holidays and benefits

- Confidentiality and Restrictive Covenants –compensation for covenant

Expat Assignment• Three U.S. job discrimination laws follow U.S. expats:

- Title VII of the Civil Rights Act- Age Discrimination in Employment Act- Americans With Disabilities Act

• German employee has privacy right to flirt

• The “Foreign Laws Defense” applies if:- Decision concerns an employee in a foreign workplace- Compliance with U.S. law violates foreign law

Expat Assignment• Data protection restrictions

- Employee personal data is strictly regulated

- German subsidiary cannot transfer H.R. data to U.S. unless:

* trans-border data transfer agreement * Meets safe harbor provisions * binding corporate data privacy rules

Expat Assignment

• Legal rights of male harasser

- Fire “for cause”

- 7 month written notice

- Consultation with works council

- Alternatives to termination

Global HR Policies

• Implement U.S. Code of Ethics in Germany

- Discrimination, harassment, etc.- Bribery, gifts, etc.- Whistleblower hotline- Discipline for violations

• Implement immediately

• ANY PROBLEMS?

Global HR Policies

• Works Councils- Information and consultation- Co-determination – consent required

• Data Protection- Hotline limited to accounting and bribery related issues - Exclusive hotline or website- Cannot encourage anonymous reporting- Trained dedicated investigators- No transfer of data outside Germany without protections

Managing a Global Workforce

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