My worst day as an employment lawyer came when I had to call an employee’s dad and tell him that his son was missing. The company had a critical meeting scheduled in a large city where several employees had traveled, and for one employee, running that meeting was going to be the biggest day of his career. But at four o’clock that afternoon, back at corporate headquarters, we got a call that he had never showed up.
We started calling his fellow travelers to find out if they had seen him. We had the hotel check his room—he hadn’t slept in his bed. A couple of coworkers came forward to say that they had all been out to a bar the night before, and the last time that they saw him “he was getting into a cab with a couple of people [they] had just met at the bar.” We pulled together an internal team of security, human resources and legal professionals, contacted the local police and then immediately hired a private investigator. While the investigation ensued, call after call came in from the employee’s family desperately hoping to hear any information on their loved-one’s whereabouts. Time slowed down as we were unable to find our colleague, unable to answer his family’s questions about what the police were doing, and as we became more and more the target of the family’s fear and frustration as the search went on for their missing son. As the nightmare wore on, it became evident to me that the family’s expectations of our organization were unrealistically high; they expected us to deliver results that were impossible, and yet the more we tried to do the more exposed we became.
Over the course of my career, I experienced several similar incidents and read similar accounts from others. In large companies, this happens surprisingly often: While traveling, employees sometimes disappear or otherwise confront some threat to their safety and security. Many of these stories do not have happy endings. And worst yet, once corporate headquarters learns that one of its employees has suffered injury or loss while traveling abroad, the time for taking steps to protect employees’ safety is over. By that point, employers must go into reactive mode to assist local law enforcement with its investigation and attempts to resolve the crisis.
Employers have a legal duty to take steps before sending employees on a foreign assignment—especially if the destination is known to be dangerous—to minimize risks to their safety and well-being. For example, in Gary Parsons v. United Technologies Corporation (1997), the court found that the employer’s duty to provide a safe workplace includes travel abroad to locations not controlled by the employer. Given today’s economic reality of global expansion, coupled with the brutal fact that many developing nations are identified as hot-spots for criminal acts such as terrorism or kidnapping, there is no sure-fire mechanism available for employers to insulate themselves completely from liability to the employee when that person’s worst nightmare comes true. It just is not possible to ensure the enforceability of an agreement with the employee in which he or she acknowledges the risk of taking a dangerous job and agrees to a limitation on damages or liability in a claim against the company. A case out of the D.C. Circuit Court of Appeals, Khan v. Parsons Global Services, Ltd. (2005), establishes that an employee’s agreement to limit employer liability for damages resulting from injury while on foreign assignment may not be enforceable.
In Khan, an employee was kidnapped while working as an accountant in Manila on a long-term assignment. The employer, Parsons, immediately engaged with the kidnappers to negotiate a ransom and also communicated with the family. However, as the negotiations continued over the course of weeks, Parsons disclosed to the family that it was concerned that paying the kidnappers would lead to additional kidnappings of Parsons’s employees. However, when Mr. Kahn’s ear turned up in the mail, Parsons immediately paid the ransom and the kidnappers released him.
The kidnapped employee, Azhar Ali Khan, and his family then sued Parsons. They raised tort claims for negligence and emotional distress claiming, among other things, that Parsons mishandled the negotiations with the kidnappers. Parsons’s defense was contractual, since Khan had agreed as part of his assignment that any liability for injury would be covered by workers’ compensation. The D.C. Circuit Court of Appeals disagreed, holding that Khan’s lengthy foreign assignment abroad took him outside the scope of the home-state’s workers’ compensation scheme. The court further held that the employee’s written agreement that compensation for any injuries would be covered by the workers’ compensation system could not bring the employee back within the coverage of this U.S.-based statutory scheme.
The Khan case is important for two reasons. First, it highlights that employees’ contractual waivers, in certain circumstances, will not be enforceable. Second, it stands for the proposition that U.S.-based workers’ compensation systems will not always limit employees’ right to sue their employers on tort-based theories of liability for injuries or losses sustained as the result of foreign travel or work assignments. The heart of tort-based theories, such as negligence, is the element of a duty of care. This brings us to the obvious question: “What must an employer do to properly discharge that duty?” While the courts have not articulated specifically what measures an employer must take to reasonably discharge the duty of care to provide a safe workplace relative to employee travel and overseas assignments, the following is a short list of steps that employers should consider taking as part of their foreign travel safety program:
Become well-acquainted with the U.S. Department of State’s website, which has country-specific information concerning threats to safety and security, areas of political and social instability, recommended health immunizations, and restricted areas within the country.
Provide training to employees who undertake international travel in safe travel practices, or, at minimum, adopt a travel policy that includes safety practices and precautions that must be taken when on foreign assignment.
If you are sending an employee to a destination considered “dangerous” on the Department of State’s website and it is not possible to postpone the employee’s travel until the security threat is cleared, then work with your employee to devise an individualized travel safety plan specifying a comprehensive travel itinerary designed to minimize risks to the safety, health, and well-being of the employee (and, if applicable, his or her family). Internal or external security department personnel are excellent resources with whom to partner on these projects. In addition, it is important to prearrange transportation to and from local destinations, as well as take measures to ensure that employees are accompanied during the period that it takes to acclimate to the local culture and work environment.
Employers should ensure that, prior to leaving for company-sponsored travel, employees have contact information for available corporate security and human resources personnel, as well as emergency contact information for local law enforcement, health care providers, and other emergency service providers.
In my own grueling first experience with employee safety issues while abroad, thankfully, the missing employee returned on his own, safe and sound. I will never forget those terrifying hours, however—how hard it was to disassociate my own personal feelings of concern for my colleague from my duty as a legal advisor to the organization. These are the moments that test us—as lawyers and as people.
Carson G. Burnham is a shareholder in the Boston office of Ogletree Deakins, and she chairs the firm’s International Practice Group.