Employee Safety and Security on International Assignments: Employers Step Up to the Plate

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.