MANAGING A GLOBAL WORKFORCE presented by Grant D. Petersen, Esq.

1. MANAGING A GLOBAL WORKFORCE
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

2. SALES REP
BRAZIL
U.S., OFFSHORE
EXPAT
to
EMPLOYEE INC. CHINA
GERMAN
SUBSIDIARY

3. 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?

4. 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

5. 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

6. 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

7. 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

8. 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?

9. 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

10. 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?

11. 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

12. 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

13. 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

14. Expat Assignment
• Legal rights of male harasser
- Fire “for cause”
- 7 month written notice
- Consultation with works council
- Alternatives to termination

15. 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?

16. 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

17. Managing a Global Workforce
QUESTIONS?

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