Sometimes U.S. employment laws apply to U.S. citizens who are working abroad, and sometimes they don't. HR should know when these laws apply "extraterritorially," as well as when U.S. law and non-U.S. law are at odds.
When U.S. citizens work for a U.S. company or subsidiary abroad, they are protected from discrimination under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA).
The Fair Labor Standards Act, the Family and Medical Leave Act, the National Labor Relations Act, the Occupational Safety and Health Act and state laws have no extraterritorial application, said Erika Collins, an attorney with Faegre Drinker in New York City.
"We are fortunate in the U.S. because our laws are quite clear as to when and whether they have extraterritorial application," she said. Foreign laws often do not address extraterritorial application.
Who Isn't Covered
In general, non-U.S. citizens aren't covered in these cases. For example, the extraterritorial application of anti-discrimination laws does not apply to green card holders working abroad for a U.S. company, Collins said.
As for foreign individuals working or applying to work within the U.S., the 4th U.S. Circuit Court of Appeals has held that a foreign employee's work within the U.S. must be more than minimal to be protected by U.S. anti-discrimination laws. The 4th Circuit has refused a claim that mere submission of a resume by a non-U.S....
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