Extraterritorial Applicability of US Labor and Employment Law

Primary Resources

Statutes

Follow these links to the statutory authority for 6 of the most important federal employment and labor statutes in full text on the Internet.

Age Discrimination in Employment Act (ADEA)

Extraterritorial Applicability: 29 U.S.C. §623

     Link: U.S. House of Representatives Web Server http://law.house.gov 

Americans with Disabilities Act (ADA)

Extraterritorial Applicability: 42 U.S.C. §12112(c)

Index to ADA US Code Sections - 42 U.S.C. §12101 et seq.

     Link: U.S. House of Representatives Web Server http://law.house.gov 

Equal Pay Act (EPA)

Extraterritorial Applicability: 29 U.S.C. §213(f)

EPA Statute - 29 U.S.C. §206

     Link: U.S. House of Representatives Web Server http://law.house.gov 

Fair Labor Standards Act (FLSA)

Extraterritorial Applicability: 29 U.S.C. §213(f)

Index to FLSA US Code Sections - 29 U.S.C. §201 et seq.

     Link: U.S. House of Representatives Web Server http://law.house.gov 

National Labor Relations Act (NLRA)

Index to NLRA US Code Sections - 29 U.S.C. §151 et seq.

     Link: U.S. House of Representatives Web Server http://law.house.gov 

Title VII of the 1964 Civil Rights Act

Extraterritorial Applicability: 42 U.S.C. §2000e-1(c)

Index to Title VII US Code Sections - 42 U.S.C. §2000e et seq.

     Link: U.S. House of Representatives Web Server http://law.house.gov

Regulations, Guidelines and Other Agency Information

Applicable Regulations

• 29 C.F.R. §1601.1
  Regulations outlining Equal Employment Opportunities Commission's procedures for enforcement of Title VII and the ADA.

• 29 C.F.R. §1620.1
  Basic applicability of EPA

ADA see Title VII

ADEA

• EEOC: Policy Guide on Application of ADEA and Equal Pay Act Overseas, No. 641, March 3, 1989.
  Fair Empl. Prac. M. (BNA) 405:4077 et seq.

Enforcement

• Executive Order No. 12106
• EEOC Notice No. 915-002, October 20, 1993.

EPA

• EEOC: Policy Guide on Application of ADEA and Equal Pay Act Overseas, No. 641, March 3, 1989.
  Fair Empl. Prac. M. (BNA) 405:4077 et seq.

FLSA

• Wage and Hour Opinion 510, June 29, 1981.
  Wage and Hour M. (BNA) 99:1309

Title VII and ADA

• EEOC: Enforcement Guidance on Application of Title VII and ADA to Conduct Overseas and to Foreign Employers in the United States, October 20, 1993.
  Fair Empl. Prac. M. (BNA) 405:6663 et seq.

Case Law

The cases listed below represent cases which defined, for each of the major statutes, the extraterritorial applicability, or lack thereof, of the statute. Use them as starting points for your research.

ADEA

• Robinson v. Overseas Military Sales, 21 F.3d 502 (2d Cir. 1994).
  ADEA, despite 1984 amendment explicitly applying the statute extraterritorially, did not apply to Swiss corporation employing an American in Korea.
  
  
• Thomas v. Brown & Root, 745 F.2d 279 (4th Cir. 1984).
  Employee who had worked previously in U.S. had sufficiently changed residence while working in Netherlands for U.S. employer that the ADEA was inapplicable.
  
  
• Wolf v. J.I. Case, 617 F. Supp. 858 (D.C. Wis. 1985).
  Found that the location of the "work station" was the determinitive factor in ADEA extraterritorial applicability.

ADA -- see Title VII

FLSA

• Vermilya-Brown v. Connell, 335 U.S. 377 (1948).
  Link: U.S. Dept. of Commerce FedWorld/FLITE http://www.fedworld.gov
  U.S. Supreme Court held FLSA to apply to U.S. leaseholds, in this instance Bermuda. This case was reversed by Congressional amendment to the FLSA in 1957.

NLRA

• Benz v. Compania Naviera Hidalgo S.A., 353 U.S. 138 (1957).
  Link: U.S. Dept. of Commerce FedWorld/FLITE http://www.fedworld.gov
  Decision restricted application of the NLRA to U.S. residents.

• Int'l Longshoremen's Assoc., Local 1416 v. Ariadne Shipping, 397 U.S. 195 (1970).
  Link: USSC+ Online Commercial Site http://www.usscplus.com
  Unusual ruling holding a foreign employer liable for wages owed to American residents.

• McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963).
  Link: U.S. Dept. of Commerce FedWorld/FLITE http://www.fedworld.gov
  U.S. Supreme Court held that the NLRA did not apply to a foreign employer with foreign employees on a foreign-flagged vessel, despite stops at U.S. ports.

• Windward Shipping v. American Radio Assoc., 415 U.S. 104 (1974).
  Link: U.S. Dept. of Commerce FedWorld/FLITE http://www.fedworld.gov
  Interpreted Congressional failure to indicate an "affirmative intent" to apply NLRA to foreign employers.

Title VII and ADA
Arabian American Oil Co., below, was the impetus for Congress amending Title VII (as part of its enactment on the ADA) so that it explicitly applied outside the U.S.

• Boureslan v. Aramco, 863 F.2d 8 (5th Cir. 1988).
  Fifth Circuit Court of Appeals holding, pre-amendment, that Title VII did not apply extraterritorially.

• EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991).
  Link: Cornell School of Law http://www.law.cornell.edu
  U.S. Supreme Court held that Title VII did not apply extraterritorially. This case caused Congress, as part of its enactment of the ADA, to amend Title VII and explicitly extend both statutes extraterritorially.

Determination of Foreign Covered Entity
These cases discuss when federal laws, even if they can be applied exterritorially, would apply to a particular entity.

• Radio and Television Broadcast Technicians Local 264 v. Broadcast Serv. of Mobile, 380 U.S. 255 (1965).
  Link: U.S. Dept. of Commerce FedWorld/FLITE http://www.fedworld.gov
• Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983).

Secondary Resources

Treatises

Employment Discrimination

1 Lex K. Larson and Jonathan Harkavy, Employment Discrimination §§7.01-7.02 (2d Ed. 1997).

KF 3464.L3 1996

Useful treatise for employment law in general; very cursory handling of extraterritorial applicability of labor laws.

 

Extraterritorial Employment Standards of the United States: the Regulation of the Overseas Workplace

James M. Zimmerman, Extraterritorial Employment Standards of the United States: the Regulation of the Overseas Workplace (Quorum Books 1992).

KF 3321.Z56 1992

Relevant Legislative History

FLSA

Senate Report No. 987, reprinted at 1957 U.S.C.C.A.N. 1756-1757.

 

Title VII

House Report No. 914, reprinted at 1964 U.S.C.C.A.N. 2391

Articles

Frank Balzano

Comment: Sextraterritorial Application of the National Labor Relations Act, 62 U. Cin. L. Rev. 573 (1993).

Looks specifically at the effects of the Aramco decision on the NLRA.

 

Edward A. Brill and Daniel R. Halem

Foreign, U.S. Labor Laws Could Clash; Pronouncements by the EEOC and the NLRB Show How Local Issues Have International Consequences, Nat'l L.J., Feb. 28, 1994, at S20.

 

Meredith Poznanski Cook

Note: The Extraterritorial Application of Title VII: Does the Foreign Compulsion Defense Work?, 20 Suff. Transnat'l L. Rev. 133 (1996).

Investigates the statutory defense available to employers who would otherwise be subject to the extraterritorial applicability of federal labor laws.

 

William Scott Smith

Extraterritorial Application of Title VII and the Americans with Disabilities Act: Have Statute, Will Travel, 36 S. Tex. L.J. 191 (1995).

Overview of extraterritorial application of federal laws after the Aramco case and Congress' amendments to Title VII and the ADA.

 

Jonathan Turley

Dualistic Values in the Age of International Jurisprudence, 44 Hastings L.J. 185 (1993).

General discussion of presumption against extraterritorial application of laws.

 

Jonathan Turley

When in Rome: Multinational Misconduct and the Presumption Against Exterritoriality, 84 Nw. U.L. Rev. 598 (1990).

Contrasts the extraterritorial applicability of "market" (securities, antitrust) laws and employment laws.

 

James M. Zimmerman

International Dimension of U.S. Fair Employment Laws: Protection or Interference?, 131 Int'l Labour Rev. 217 (1992).

Miscellaneous Encyclopædic Sources

45A Am. Jur. 2d Job Discrimination §52

 

14A C.J.S. Civil Rights §§148-149