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Employers’ Responsibilities for Employees Crossing Borders
A first-person global HR account

By Lisbeth Claus  9/2/2009
 

Nov. 26, 2008, is a day that is clearly etched in my memory. My BlackBerry was frantically buzzing, posts were left on my Facebook page, and messages filled my home, office and cell phones. They all asked: “Where is Aimee and is she OK?”

Aimee Akimoff, director of recruitment for Willamette University's full-time MBA program, found herself in a situation she (and the university) never anticipated. As her flight touched down in Delhi, India, on Nov. 27, the crowded financial district of Mumbai was under siege by armed terrorists.

Aimee at first didn't understand the severity of the situation. As her flight landed, she received text messages from a friend back in Oregon asking if she was OK. She turned to view the TV monitors in the airport terminal and saw the Taj Mahal Palace & Tower Hotel in Mumbai under siege.

The historic and beautiful Taj Hotel is frequented by many of Mumbai's business elite, and it is often where Aimee, representing the Willamette MBA program, meets prospective students. She was booked to stay at the hotel just two days after the terror attacks began (she was there to attend the World MBA Tour, scheduled at the Taj Hotel as well). The university administration, concerned foremost about the human side of the situation—Aimee’s safety and security—took immediate steps to have Aimee return safely to the United States.

After the events unfolded, I could not stop thinking about the university’s role as an employer and its duty of care. I have to admit that, even as a global HR expert, the university’s responsibility toward the international travel of faculty and staff was completely off my radar screen. I wondered how multinational employers dealt with their traveling employees and what steps they took.

During my planned sabbatical in spring 2009, I decided to focus my research on this issue. By coincidence, International SOS later commissioned me to research, analyze and provide solutions around the Duty of Care of Employers for Protecting International Assignees, their Dependents and International Business Travelers, which became the title of a white paper to be released in September 2009.

In this white paper, I review the employer’s responsibilities for their employees (and employees’ dependents) who cross borders as part of their work duties. The overall goal of the white paper is to inform decision-makers about these responsibilities. At the same time, I offer guidelines that will help organizations plan, organize and develop an appropriate integrated risk management strategy.

The white paper begins with 36 different real-life incidents of international business travelers, international assignees and their dependents that were reported to me by global HR colleagues during the course of my research. These incidents cover a diverse range of risk management situations (terrorism, crime, war, natural disasters, infectious diseases, travel-related illnesses, cultural estrangement, vehicle accidents, hotel fires, common travel problems, and overall lack of legal and administrative compliance). Clearly, these examples shatter the myth held by many employers that “this is unlikely to happen to us.

After defining duty of care, the paper reviews a broad range of employment-related duty of care obligations, the bulk of which is focused on legal compliance. Statutory and pertinent case laws are reviewed for nine countries—Australia, Belgium, Canada, France, Germany, the Netherlands, Spain, the United Kingdom and the United States—as well as unique issues regarding employees crossing borders in the European Union. The paper demonstrates the complexity of legal compliance through reviewing the decisions in 34 cases related to global workers in five countries (although many cases are settled out of court). This is further illustrated through issues of diversity in legislation, choice of law and jurisdiction.

Takeaway

The resulting message to employers is simple: you can be liable if you don’t have anything in place to help your employees, and that’s when the lawyers enter the room! But far more important than legal compliance, my research focuses on the human side of the organization: mostly folks in the HR, security, medical and travel areas who truly care about the well-being of their employees. As was the case at our university, it is clear that not everyone is aware of duty of care and it is not clear who holds responsibility in the organization.

There are many challenges for an organization to become socially responsible in the area of employer duty of care: the lack of awareness among employers; the unfamiliarity with the legal compliance issues; the current focus on cost reduction; the gamble some organizations take that it will not happen to them; and the difficulty of taking coordinated action due to multiple decision-makers in the organization holding varying levels of interest and power to make things happen to protect their global employees.

After reviewing best practices and describing the results of a cost-benefit analysis, my recommendations are not surprising. In light of corporate social responsibility initiatives, employers’ legal duty of care responsibilities and the high economic costs of breaching duty of care responsibilities, I recommend a strategic approach to a risk management strategy for global employers for their international business travelers and assignees. Such a risk management approach entails a number of different, yet common, steps including risk assessment, prevention, mitigation and control.

Managers who fail to pay attention to the employer’s duty of care responsibilities, especially for their employees crossing borders, are failing in their commercial, fiduciary and moral responsibilities. The incident in Mumbai was a powerful reminder of our university's responsibilities related to duty of care. What will it take for your organization to get mobilized?       

Related Link:

Duty of Care of Employers for Protecting International Assignees, their Dependents and International Business Travelers and the upcoming U.S. roundtable schedule will be available online from International SOS in September 2009. The executive summary can be downloaded here.

Lisbeth Claus, SPHR, GPHR, is professor of Global HR, Atkinson Graduate School of Management, Willamette University.

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