- Answer 1. U.S.-based employer with non-U.S. headquarters should keep in mind the following issues that may differentiate the U.S. response from a response in other jurisdictions:
(1) Employment At Will
At-will employment is unique to the United States—this means that, outside the United States, employees have contractual rights, and the general principle (absent limited exceptions) is that employers cannot adjust contract terms adversely to the employee without the employee’s consent. If the employer does so (depending on the jurisdiction), employees can resign and raise a claim for “constructive dismissal,” which may entail severance and notice payments, unfair-dismissal damages, and even reinstatement with the previous terms.
(2) Collective Bargaining Agreements
Many countries operate with collective bargaining agreements that are industry-wide or apply to a certain category of employees even without a specifically-negotiated agreement with the union (e.g., Australia’s modern awards and many European and Latin American countries). Employees outside the United States often have the absolute right to form a union, and management does not have the right to oppose it through a campaign and election process the way union formation occurs in the United States. Finally, even nonunionized workplaces outside the United States, have some sort of employee representation in the form of a Works Council (which are used in Europe) or other elected employee representatives or representative bodies (which are used in China, Korea, Japan).
(3) Leaves of Absence
In addition to emergency COVID-19 measures, different countries have different statutory leaves that often extend beyond U.S. requirements and importantly, require separate accrual for annual leave and sick leave (making paid time off (PTO) risky or difficult to administer).
(4) Reductions in Force
When employees are conducting a reduction in force, many countries have specific protocols that must be followed as it relates to selection criteria and severance. These processes may involve notice periods and contact with the local labor authorities.
(5) Data Privacy
While many global companies apply General Data Protection Regulation (GDPR) standards as a worldwide minimum—and any Privacy-Shield-certified countries must consider this when making U.S. decisions—employers should be aware of local privacy statutes that may differ from GDPR in various ways. See also our Privacy FAQ (forthcoming).
The WHO’s “Getting your workplace ready for COVID-19” guidance of 3 March 2020, recommends that employers assess the working environment for cleanliness and display prominent posters regarding hand washing and good respiratory hygiene. Employers should also ensure that workplaces have a good supply of tissues, soap and hand sanitizer with over 60 percent alcohol content.