Academic journal article Duke Journal of Comparative & International Law

"The Longest Journey, with a First Step": Bringing Coherence to Sovereignty and Jurisdicitonal Issues in Global Employee Benefits Law

Academic journal article Duke Journal of Comparative & International Law

"The Longest Journey, with a First Step": Bringing Coherence to Sovereignty and Jurisdicitonal Issues in Global Employee Benefits Law

Article excerpt

INTRODUCTION

Global employee benefits law is an emerging field of study that requires coherence at the threshold level of coverage. The statutory maze of sovereignty and jurisdictional issues involved with U.S. employee benefit laws, for instance, make it difficult to determine when American employee benefit laws apply to U.S. citizens abroad or to foreign citizens in the United States. This raises significant problems in particular given the growing tendency of the U.S. Congress to export U.S. labor and employment standards to other parts of the world through legislative amendment. (1) Additionally, this state of affairs is made even worse by the fact that no formal international legal machinery exists to deal with these issues, leaving corporations alone to navigate U.S. and foreign employee benefits law. (2) Although a single global employee benefits law regime is not presently realistic, (3) it is possible to start piecing together this regime by determining when and where U.S. employee benefits law applies, beginning with a consideration of the scope of the chief employee benefits law in the United States, the Employee Retirement Income Security Act of 1974 (ERISA). (4)

While the expansion of U.S. labor standards beyond U.S. borders is not without controversy, few would question the authority of Congress to extend these protections overseas if it intended to do so. (5) There is reason to suspect that Congress did intend to extend ERISA coverage beyond U.S. borders; although ERISA has no explicit provision extending coverage overseas, it does have broad jurisdictional language. ERISA [section] 4(a), (6) states in pertinent part: "[T]his title shall apply to any employee benefit plan if it is established or maintained--(1) by any employer engaged in commerce or in any industry or activity affecting commerce." (7) In most cases, this language has been interpreted to find that ERISA does not apply to employee benefits matters that arise outside of the United States. (8) But that is not the end of the story. Many questions about coverage still exist given the vagueness of ERISA's provisions when it comes to matters of extraterritorial application, whether related to the application of ERISA to foreign employees in the United States or the application of ERISA to foreign companies operating to some degree in the United States.

Thus, three additional dimensions of ERISA coverage involving the global context must be explored relating to: (1) issues of legal foreign employees in the United States; (2) issues of foreign government employer immunity under the Foreign Sovereign Immunities Act (FSIA); (9) and (3) issues surrounding foreign undocumented workers.

This article proceeds in two parts. First, it explores the extraterritorial application of ERISA to domestic and foreign workers abroad, highlighting the confusing nature of the current legal framework." (10) Part I concludes with a proposal for an extraterritorial application model similar to the one used by Title VII of the Civil Rights Act of 1964 (11) and other U.S. employment discrimination statutes, which would simplify greatly this area of the law. Part II then considers the plight of foreign employees in the United States, including issues surrounding the "foreign plan" exception under ERISA [section] 4(b)(4), the application of FSIA to foreign sovereign companies' American operations, and the status of undocumented workers in the United States under ERISA. This second part concludes that courts should abandon the Hoffman Plastics v. NLRB (12) holding in the ERISA context for undocumented workers and that future immigration reform should ensure that documented workers employed by U.S. companies receive the same employee benefit rights under ERISA as their American counterparts. Taken together, these two sections offer proposals with one goal in mind: beginning the work toward making a globally-integrated U.S. employee benefit scheme a reality in our lifetimes. …

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