With the advent of a global economy, American multinational companies more and more are asking United States citizens to go overseas to assist in managing their offices and facilities located there. Often, such relocation results in the employee, who is being asked to leave, having to give serious consideration to the business and personal concerns of their spouse in deciding whether they are able to accept their employer's offer. Upon occasion, this has caused these employees to approach their companies requesting special treatment for their spouses.
The Background
On some occasions, for example, the potential expatriate U.S. employee will ask his/her company to find a job for his/her spouse in the country to which the company wishes to assign the expatriate employee. Indeed, where that potential U.S. expatriate believes that given his/her unique skills and/or experience, the company really needs him/her to agree to such a transfer, the expatriate employee may try to leverage that situation to ensure that his/her spouse is particularly well treated. As a result, the expatriate employee's employer in response may agree to find the spouse involved a job either with the same subsidiary or affiliated company as his/her wife or husband or alternatively at another subsidiary or affiliate within a reasonable geographic proximity. While typically this need not present a problem, more recently, companies have begun to encounter unforeseen difficulties in that regard.
The Legal and Pragmatic Concerns
In several cases, companies have, as an accommodation to the U.S. expatriate employee, in fact agreed to provide their spouse with a job with their subsidiary or affiliate abroad. Subsequently, often because of divorce or other irreconcilable personal difficulties, the couple may no longer live together. In a few instances, the spouse who has been accommodated will claim that he/she is owed salary or other remuneration because, in fact, they in reality are also expatriates, but have not been compensated or otherwise treated as such. Where the spouse making this claim is able to assert race, sex, national origin and/or age discrimination, such claims can become particularly legally dangerous.
Certainly, the basic American federal equal employment opportunity laws cover both citizens and non-citizens lawfully permitted to work in the United States. Additionally, however, Title VII of the Civil Rights Act of 1964, prohibiting discrimination on the basis of race, color, religion, sex and national origin, the Age Discrimination in Employment Act of 1967 and the Americans With Disabilities Act all provide for coverage outside the United States as to U.S. Citizens working for companies or entities owned or controlled by an American parent company. Thus, a disgruntled accompanying spouse might well be able to claim that he/she has been unlawfully discriminated against and seek redress by filing a complaint with the federal Equal Employment Opportunity Commission ("EEOC") and ultimately litigating in court. This can be accomplished from overseas by going to the relevant United States Embassy or Consulate and faxing or e-mailing a complaint to the EEOC's office located nearest the headquarters office of the American parent company. Any court litigation would likely take place in the federal court nearest the parent's headquarters office as well.
Suggestions/Reducing the Risk
In order to avoid a potentially successful legal challenge by a disgruntled accompanying spouse in connection with what is set forth above, companies should consider committing to writing the original arrangement in which it is made clear that at the request of and as an accommodation to the expatriate employee asked to leave his/her home country, arrangements were made to obtain local employment for the accompanying spouse. Such a writing should also state that the spouse is not in fact an expatriate entitled to special compensation or benefits, but is rather an accompanying spouse and, as such, will be compensated based on appropriate local wages. If possible, both the potential expatriate employee and his/her spouse should sign such a writing, indicating that they have read the same, and both understand and agree to this arrangement. Alternatively, a less formal memo could be prepared for communication to the potential expatriate, explicitly describing the intended arrangement. In any event, this approach should also be utilized in connection with non-spouse significant others who may also accompany the potential expatriate employee. In so doing, there is created at least some evidence prior to any dispute arising making clear that the accompanying spouse was never intended to be an expatriate employee and thus is not entitled to an expatriate employee's compensation and/or other benefits.