This document summarizes challenges and considerations for managing a global workforce. It discusses issues that arose for a Brazil sales representative, offshore business moved to China, an expatriate assignment in Germany, and implementing global HR policies. Key topics covered include employment classification, severance, discrimination laws, data privacy, works councils, and compliance programs.

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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