Academic journal article Business Law International

The Mobile Executive: US Employment Law

Academic journal article Business Law International

The Mobile Executive: US Employment Law

Article excerpt

Broad overview of US employment law

Employment law in the US is a complex patchwork of statutory law, administrative and regulatory law, and common law. Moreover, these laws originate not only on the national level, but also from each of the 50 US states and thousands of local jurisdictions across the country. Federal law on a particular issue generally does not prevent states from providing their own laws unless the federal law expressly or impliedly pre-empts states' laws on the topic.1 Furthermore, state and local law can vary significantly from federal requirements, as well as between states and local jurisdictions. Therefore, employers and employees subject to US employment law will need to pay careful attention to all three levels of law and the various laws' interaction with one another.

Unlike many other developed countries, the default presumption in the US is that employment is 'at will', meaning an employee or employer can terminate the employment relationship for any or no reason at all. There are a number of significant exceptions, however, to this general rule. First and foremost, the parties can contract expressly around this presumption. Executives often have employment agreements granting enhanced job protection and severance rights. In addition, some US states recognise an implied contract exception to at-will employment. Moreover, many states' case law increasingly interprets and applies the at-will employment doctrine narrowly in favour of granting workers more protections and rights.

Furthermore, a wide variety of statutes govern the employment relationship. These statutes provide limitations on at-will employment and on allowable employment contract terms, as well as providing certain protections, rights and bare minimums in employment decisions and working terms and conditions. For example, a number of federal statutes prohibit discrimination in employment decisions based on race, colour, national origin, religion, sex, age, disability and genetic information, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.2 The National Labor Relations Act establishes collective bargaining rights for private sector employees.3 The Fair Labor Standards Act (FLSA) provides for a minimum hourly wage rate and sets out overtime compensation requirements.4 The Family and Medical Leave Act entitles eligible employees to certain amounts of unpaid, job-protected leave for qualified reasons.5 The Occupational Safety and Health Act establishes certain workplace health and safety requirements.6 And the Employee Retirement Income Security Act sets minimum standards for the administration of pension plans in the private sector, although it does not require employers to establish such plans.7 These federal statutes, and others, are accompanied by a host of administrative regulations, agency decisions and case law interpreting the statutes. Each of the US states has its own parallels to many of these federal statutes, some mirroring the federal statutes almost exactly and others providing heightened or additional protections. Local ordinances covering many of these areas provide a final layer of requirements of which employers and employees must be aware.

US employment law and executives from overseas stationed in the US

General applicability of US employment laws to foreign nationals in the US

As a general rule, once an executive from overseas is in the US, his work there will be automatically covered by and subject to the relevant federal, state and local US employment laws. These laws typically apply regardless of the executive's citizenship and work authorisation status, and regardless of whether his employer is a US or foreign company.

An analysis of the coverage of Tide VII of the Civil Rights Act provides an example of this general principle. The prohibitions against discrimination in employment under Title VII of the Civil Rights Act apply to the treatment of 'any individual' by an 'employer'. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.