Nachfolgend findet sich ein englischsprachiger Artikel (Ausführungen (Auszüge aus einem Newsletter der NIETZER & HÄULSER Wirtschaftskanzlei . Attorneys at Law (USA) zur Frage der Möglichkeit von Klagen in den USA von Arbeitnehmern, die bei einem ausländischen Tochterunternehmen einer amerikanischen Mutter angestellt sind. Diese Fragen sind gerade auch für die US-amerikanische Muttergesellschaften von Bedeutung, deren Abgesandte zum Beispiel in der Geschäftsführung der deutschen Tochtergesellschaft beschäftigt sind, wie aber auch für eben die deutschen Mitarbeiter selbst. Die Situation wird anhand eines US-Falles erläutert. Wie üblich gilt auch hier, dass sich die Rechtsprechung fortentwickelt und daher bei konkreten Fragestellungen up-to-date Rechtsrat eingeholt werden muss!
Overseas Workers’ Class Actions Against U.S. Multinationals
Unocal Oil defends itself against a California class action over work conditions in Burma. The New York-based maker of Perry Ellis clothes pays out $30 million to settle a Texas lawsuit over an employee benefit it offers in Mexico, Chiquita and Dole get sued in Texas by thousands of sterile banana-pickers located in Africa, Asia and Latin America. Ford and Bayer get sued in the United States for profiting from slaves during World War II in Germany, while Mitsubishi gets sued in a California court for profiting from slaves during World War 11 in China. And The Gap, J.C. Penney and The Limited get sued in California for a billion dollars by a class of 50,000 workers who have never left Asia in their lives.
Why are so many huge foreign employment class actions being filed in America‘s courts? These cases represent a new trend in international litigation. While each of lawsuits has received extensive news coverage individually, no one is talking about the big picture trend Employment context class-actions are regularly succeeding in American courts even when all the injuries were suffered abroad by non-Americans whose only link to the United States is that their employer‘s parent company is located in the United States. Indeed, sometimes even no U.S.-based companies (Mitsubishi, Bayer) are being sued in the US. courts for labor practices that occurred outside the United States. Because these lawsuits rise to “bet-the company“ magnitude and can a rise in any industrial sector, every multinational company needs to understand the trend.
At first it might seem obvious why foreign employees choose the United States courts to adjudicate their class claims: the American jury system, the American class-action procedure, the “American rule“ on attorney fees, and American remedies – compensatory and punitive damages – are recognized the world over as especially friendly to plaintiffs. However, these are employment-context claims, and in employment matters, by global standards, American employment laws are fairly hostile to workers. Of course, every once in a while same American victim of employment discrimination does win a large judgment But these foreign-employment class actions are not discrimination cases. America‘s employment laws still embrace the business-friendly concept of employment-at will, which usually makes it the world‘s least friendly country for workers to bring employment claims.
Although these claims arise in the employment context, the legal theories underlying them have nothing to do with employment law but everything to do with personal injury law.
In substance, America‘s personal injury laws are very similar to their counterparts overseas—especially in Europe, Japan and Australia and in places with European derived legal systems, such as India and Latin America. The key differences are procedural. The United States offers juries, class action certification, the “American rule“ on attorney fees, and the world‘s highest potential money damages. And significantly, the United States offers a critical jurisdictional advantage: the Alien Tort Claims Act, which is a 1789 statute that opens Americas courthouses to foreigners who can sue for personal injuries that allegedly involve same breach of international law.
With respect to class action claims arising from U.S. companies‘ overseas affiliates‘ workplaces, the era of forum non conveniens appears to have passed. Thus, U.S.-based multinationals should assess their own (and their suppliers) worldwide employment operations, so as to lessen their vulnerability to an American class action.
But in devising a corporate strategy multinationals will quickly realize that they face two extremes. The jurisdictional hook in these cases is that the foreign employee-plaintiffs claim the US. parent defendant played a key role overseeing foreign employment operations. The plaintiff-employees need to allege that the US. parent itself knew about the negligent employment practices overseas but nevertheless condoned, encouraged or failed to stop them, or otherwise turned a blind eye. This allegation presents a huge paradox to any multinational planning to protect itself from U.S.-court overseas-employment class actions. Either it most oversee foreign affiliates with a microscope to ensure no catastrophe occurs, or else it most give foreign units complete autonomy so as to be able to prove that their facilities are independent of parent-company oversight. These two extremes present every multinational with a critical threshold choice. Should the multinational accelerate movement toward becoming truly global by better integrating worldwide operations as U.S. headquarters better scrutinizes foreign workplaces? Or should the multinational insulate US. headquarters by isolating it and depriving it of power to dictate foreign subsidiaries‘ employment practices?
There are four main strategies for minimizing exposure to employment-context U.S.court class actions arising abroad: oversee globally; decentralize; centralize outside the United States; or rely on the workers-compensation defence.
Oversee Globally. The most obvious strategy is to oversee minutely, from U.S. headquarters, all worldwide employment operations to ensure no foreign workplace catastrophe ever happens anywhere and that no one can ever brand foreign subsidiaries (or contractors‘) employment operations as sweatshops.. All major U.S. companies already boast a global human rights code of conduct. But no multinational can predict and avert every foreign-workplace incident.
Decentralize. The opposite strategy is to decentralize, in order to establish that U.S. headquarters is not responsible for any overseas workplace crisis because it has no operational control over its subsidiaries employment practices. Under the rationale in the case law, if a U.S. parent company genuinely is powerless to learn about and influence its overseas affiliates employment practices, it should be safe from judgment. Decentralizing, however may at first seem inappropiate in this era of the global company. But it’s not. Certain multinationals such as Coca-Cola are globalizing by activcly decentralizing decision-making, i.e., it is pushing authority overseas and minimizing headquarters involvement in its subsidiaries‘ affairs.
Centralize Outside the U.S. A similar strategic model is to centralize decision-making. but centralize it in countries outside the U.S., which could render foreign workers unable to tie injury claims to any American entity.
Rely on the Workers‘ Compensation Defense. A fourth strategy‘ might work only in certain circumstances, but it may often prove dispositive: use the workers compensation defense. Domestically, American employees rarely ever sue employers or their parent companies for personal injuries‘ due to the century-old doctrine of the workers‘ compensation bar.“ Workers‘ compensation is by no means unique to America. Most multinationals should be able to prove that their foreign-subsidiary‘s employees have access to a workers‘ compensation system and as a consequence should assert the “workers‘ compensation bar“ as complete defense to foreign employment-context injury claims. This defense will force plaintiffs to meet the high threshold of proving that the US. parent defendant itself committed an international tort.
Tailor a Strategy. Each U.S. based multinational needs a coherent strategy to minimize the likelihood of an overseas-employment class action suit filed for foreign employees of a foreign subsidiary such as those that were filed against Chiquita, Del Monte, Dole, Ford, J.C. Penney, The Limited, Perry Ellis/Salent, Union Carbide, The Gap and others. Even service companies such as Citigroup are being accused of “social“ shortcomings in their foreign operations. Designing a coherent strategy requires a cross-disciplinary approach. The legal issues at stake range from litigation procedure to employment law to international law to corporate law. And the corporate policy issues stretch from group integration to globalization strategy to human rights.
