Co-authored by Brenda-Lee Ravdel and Stephen Barth
How do the US 50 states’ workers’ compensation laws protect US businesses and their global and domestic travelers at home and abroad?
Business Travel by United States companies has grown exponentially over the past years. As a result, both the foreseen and unforeseen liabilities for businesses and their traveling employees raise viable concerns for all involved. Employers yearn to know how duty of care, if any, state law, interstate law, federal law or international law impacts their businesses, employees domestically and overseas, and their potential liability. At the same time, individual employees undertaking the inherent risks of domestic and international travel need to be aware of their potential remedies in dire circumstances. The employee cannot naively assume their company’s policies, state laws or even federal laws protect them in any given circumstance. Many different factors come in to play when routine business trips take a turn for the worse. These factors include the differing business policies, state workers’ compensation laws, insurance, federal law, international law and choice of law between states and nation states. After a full analysis, both business and employee may benefit by exploring optional additional insurance for greater security. As business travel proves to be a core component of a successful business strategy and increased profits, a clear understanding of the aforementioned issues proves to be vital.
According to a recent Global Business Travel Association (GBTA) report, U.S. business travel should continue its steady rise. Business travel spending for 2013 is expected to reach $273.3 billion according to the GBTA BTI Outlook. This would be a 4.3% increase from 2012. The GBTA report further finds that the increase in travel spending after accounting for travel price inflation is projected to hit 1.3% this year in contrast to .3% in 2012. Further, international outbound business travel spending is expected to grow 3.0% in 2013 to $33.1 billion. Group travel spending is also expected to continue to grow in 2013 by 5.3% to $117.1 billion. (Rebecca Carriero, Latest GBTA Report Finds that U.S. Business Travel Should Continue Its Steady Rise, (July 9, 2013), http://www.gbta.org/foundation/pressreleases/Pages/rls_070913.aspx.) It has been reported that industries increasing spending on travel increase profits, nearly tripling their return on profits for each dollar spent on business travel. (New Research Shows the Effect of Sustained Investment in Business Travel, Business Travel ROI (May 2013), http://www.ustravel.org/news/business-travel-roi.)
The travel industry has, on average, created more than 12,000 jobs a month thus far in 2013 which is 50 percent more than the average gain of 8,000 travel jobs per month in 2012. Travel jobs have made up more than six percent of total jobs added in 2013. "Since early 2010, the travel industry has been a significant source of employment growth for the economy by adding almost half a million jobs. Moreover, the increase in travel industry jobs has outpaced that of the rest of the economy, making up 92 percent of the jobs lost during the recession compared to 77 percent of jobs for the rest of the economy.” (David Huether, Travel Industry Adds Jobs At Faster Rate in 2013, U.S. Travel Association (Aug. 2, 2013), http://www.ustravel.org/news/press-releases/travel-industry-adds-jobs-faster-rate-2013.) Of the estimated 27,351,000 U.S. citizens traveling internationally in 2004, 28.2% indicated that business was a reason for their trip. (Clare E. Guse MS, Fatal Injuries of US Citizens Abroad, Journal of Travel Medicine (Sept. 19, 2007)).
As United States’ businesses continue to expand across state and international borders, potential risks for both the business and the business traveler increase. Some of these risks include roadway accidents, disease, civil unrest, terrorism, kidnapping, natural disasters, air travel risks and many more. The Census of Fatal Occupational Injuries Summary for 2012 showed a preliminary total of 4,383 fatal work injuries were recorded in the United States. (Bureau of Labor Statistics, U.S. Dept. of Labor (Aug. 22, 2013), http://www.bls.gov/news.release/pdf/cfoi.pdf.) Of these fatalities 17% were in transportation and 24% roadway related. Id. Although these statistics do not specify types of jobs for the fatal injuries, the indication remains that roadway travel increases risk of injury. The National Safety Council estimates that motor vehicle crashes are the number one cause of unintentional workplace deaths in the United States. (Employer Traffic Safety Program, National Safety Council, http://www.nsc.org/safety_road/Employer%20Traffic%20Safety/Pages/NationalHome.aspx.) Furthermore, the World Health Organization report on driving in developing countries explains that one in seven countries fails to have adequate road traffic laws to deal with major hazards. An estimated one million people die on the roads worldwide every year. (Jim Atkins, Killer Roads Are A Major Risk For Expats, iExpats (Aug.14, 2013), http://www.iexpats.com/killer-roads-are-a-major-risk-for-expats/ .)
Regarding international business travel, since 2001, 3,357 civilian contractor deaths have been reported as well as 94,727 civilian contractors injured. At least 55 civilian contractor deaths were reported in the second quarter of 2013 and at least 44 civilian contractor deaths were reported in the first quarter of 2013. (Defense Base Act Workers’ Compensation, http://dbacomp.com/defensebaseactcomp/2012/12/31/civilian-contractor-casualty-count/ (Dec. 31, 2012). Each year, more than a million people become sick or injured outside their home country. Traveling overseas on business presents many unique risks arising from language barriers, jet lag, endemic disease and driving hazards. (Protecting Your Employees Traveling Internationally, Chubb Group of Insurance Companies, (Dec. 9, 2013), http://www.chubb.com/businesses/cci/chubb2613.html.) These statistics exemplify the inherent risks business travel poses to both employer and employee. Navigating and preparing for these risks proves to be crucial for businesses and their traveling employees.
Currently, the United States law provides no one definitive legal precedent holding employers liable for negligence resulting in injuries to employees traveling abroad. (Mark Pestronk, Dispelling Notions of Legal Duty to Employees Injured Abroad, Travel Weekly (Nov. 3, 2011), http://www.travelweekly.com/mark-pestronk/dispelling-notions-of-legal-duty-to-employees-injured-abroad/.) However, United States laws regulating freedoms from discrimination do extend to United States citizens extraterritorially. Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) protections extend to any United States citizen employed by United States companies and their sites overseas. Title VII of the Civil Rights Act prohibits discrimination in employment based on race, color, religion, sex, or national origin. These protections extend extraterritorially; however, there is a provision in Title VII stating:
|It shall not be unlawful under [Title VII] for an employer (or corporation controlled by an employer)… to take any action otherwise prohibited by such section, with respect to an employee in a workplace in a foreign country if compliance with such section would cause such employer (or such corporation)… to violate the law of the foreign country in which such workplace is located. 42 U.S.C. § 2000e-1(b) (2000)|
This section means Title VII allows discrimination in employment based on religion, sex or national origin “in those certain instances where religion, sex or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” (42 U.S.C. § 2000e-2(e) (2000)). Therefore, it is not a violation of U.S. law for an employer to engage in conduct that ordinarily would constitute illegal behavior if such behavior were required by law where the conduct took place. (Paul Frantz, International Employment: Antidiscrimination Law Should Follow Employees Abroad, 14 Minn. J. Global Trade 227 (2005).) However, interpretation of this section weighs heavily on the particular facts of each case as exceptions to employment discrimination prohibitions are extremely unusual.