From the desk of Linda Carter Batiste, J.D., Principal Consultant
These days, the U.S. economy is part of a larger, global economy so it is not unusual for U.S. companies and U.S. citizens to work in foreign countries, nor is it unusual for foreign companies to operate in the United States. As a result, one of the questions that arises is: when do U.S. laws apply to employees who work overseas or who work in the United States for a foreign employer? Of course at JAN the law we get the most questions about is the Americans with Disabilities Act (ADA). Luckily, the Equal Employment Opportunity Commission (EEOC) has published guidance on this issue. This guidance is aptly called: Enforcement Guidance on Application of Title VII and the Americans with Disabilities Act to Conduct Overseas and to Foreign Employers Discriminating in the United States. Here’s a summary of what it says:
- Working in a Foreign Country: To determine whether the ADA applies to employment in foreign countries, you must look at both the employee and the employer. The employee must be a U.S. citizen; foreign employees working in foreign countries have no protection under the ADA. In addition, the employer must be a covered entity (at least 15 employees) and must be of American nationality or, if foreign, controlled by an employer of American nationality. There is one exception called the “foreign laws defense.” All this defense means is that American employers do not have to violate the laws of the foreign country in which the workplace is located in order to comply with the ADA. So, to quote the EEOC, generally “American workers employed by U.S. companies overseas enjoy the same broad protections as workers in the U.S. That means protection under the anti-discrimination laws travels with the employee, so long as the employee is a U.S. citizen working for a U.S. company.”
- Foreign Employers in the United States: On the other hand, the ADA applies to foreign companies with 15 or more employees operating within the United States regardless of an employee’s nationality. However, in some cases coverage is limited by a treaty or international agreement between the United States and the home country of the foreign employer.