Im folgenden finden sich englischsprachige Ausführungen (Auszüge aus einem Newsletter der NIETZER & HÄULSER Wirtschaftskanzlei . Attorneys at Law (USA) zur Fragestellung, inwieweit nach US-amerikanischem Recht Muttergesellschaften für „Employment Practices“ ihrer im Ausland gelegenen Tochtergesellschaften haften (dies gilt sowohl für US-amerikanische Mütter und deutsche Töchter wie auch für den Fall einer deutschen Mutter und einer US-amerikanischen Tochter). Wie üblich gilt auch hier, dass sich die Rechtsprechung fortentwickelt und daher bei konkreten Fragestellungen up-to-date Rechtsrat eingeholt werden muss!
Foreign-owned subsidiaries doing business in the United States may expose their parent companies to liability for employment practices carried out in the United States. Thus, an employee of the US. subsidiary who brings a lawsuit for employment discrimination may claim that the parent should be liable for the acts of its subsidiary. Foreign multinationals often establish separately incorporated entities to conduct business in the United States. These entities may act entirely independently of the parent and be staffed locally Or, they may be principally staffed by expatriates who take direction directly from the patent company. More often than not, the situation falls somewhere between these two extremes. The subsidiary will have power to enter into contracts with third parties and will be staffed primarily by locally hired US. employees. However, parent country expatriates may hold key executive positions and thus take direction from the parent company. The courts will employ a four-part test to determine whether a parent company is liable for the subsidiary‘s conduct. A parent and subsidiary may be found to represent a single, integrated enterprise if there is sufficient evidence of (1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and ownership or financial control.
For the first, interrelation of operations, the following facts ar considered as relevant:
- whether the parent was involved directly in the subsidiary‘s daily decisions relating to production, distribution, marketing and advertising; whether the two entities shared employees, services, records and equipment;
- whether the entities commingled bank accounts, accounts receivable, inventories and credit lines; whether the parent maintained the subsidiary‘s books;
- whether the parent issued the subsidiary‘s paychecks; and
- whether the parent prepared and filed the subsidiary‘s tax returns,
In evaluating the key factor of control over labor relations, the court considered:
- whether the subsidiary had a separate human resources department;
- whether it established its own employment policies and made its own decisions regarding hiring firing and discipline of employees;
- whether employment applications were sent to the parent;
- whether personnel status reports were sent to the parent;
- whether the subsidiary cleared major employment decisions with the parent; and
- whether the parent made a practice of shifting employees between the parent and the subsidiary.
The two remaining factors, i.e., common management and common ownership or financial control, were held to be “ordinary aspects of the parent-subsidiary relationship,“ so that the mere possession of a controlling stock interest would not joint employer liability.
Certain administrative safeguards would strengthen an argument against a finding of a joint employer status. Ideally, the parent and subsidiary should have separate personnel functions. At least on the local level, the subsidiary should be responsible for its own hiring decisions, as well as designating salary ranges, providing benefits and imposing discipline. Each company should have separate employment policy manuals. This does not mean that the policies must differ in substance, but the manuals themselves should be distinct. The parent may review and even approve personnel policies for the US. subsidiary without necessarily implicating the parent in the subsidiary‘s personnel decisions, since the joint employer analysis focuses less on approval of policy decisions than it does on actually implement decisions and engaging in more than rubber-stamp review. However, the more frequent and extensive the reporting, the more likely it will be that the parent will be considered a joint employer, quarterly or monthly reports on personnel matters would be of less concern than today.