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CCCA_V3No1_Col-MillerThom-FIN.qxd:CCCA_V1No2_Col-LabrEmpl-V1.qxd 1/21/09 3:09 PM Page 39 Legal Update – Miller Thomson LLP The Global Workplace 101: Issues facing multinational employers Multinational employers face unique legal and human resources challenges as they seek to manage a global and increasingly more seamless workplace. Not all Labour Law is Created Equally to local employment law for the services which place restrictions on the employer’s Labour and employment laws vary signif- performed in that jurisdiction. In Ontario, ability to unilaterally transfer and store icantly across international and even for example, the Employment Standards Act, employee personal information outside of domestic borders. Just ask an American 2000 will generally apply to a non-resident the jurisdiction of the workplace. These parent corporation that opens an opera- who is working in Ontario regardless of restrictions may also apply to intra-nation- tion in Ontario, only to discover that the where the employer is based. Other laws al transfers of information in some cases. random drug-testing policy it has imple- may also apply,including human rights and For example,private sector privacy legisla- mented widely throughout its U.S. oper- workplace safety and insurance legislation. tion in Quebec places significant restric- ations will not withstand legal scrutiny in Another issue that arises when an tions on the ability of a Quebec-based pri- the province, and that because there is no employee is transferred or a non-resident is vate- sector employer to transfer informa- “at will” employment in Canada, it will hired to work in a particular location is the tion outside of Quebec or across Canadian cost much more to dismiss employees on matter of deciding which law and jurisdic- borders.Similar federal legislation general- a without cause basis. tion will apply in the event of a dispute or ly places the onus on the local employer to The difference in the law restricts the break down in the relationship. Generally, ensure that adequate security measures are ability of foreign employers to unilaterally and subject to any policy reasons (including in place before any transfer of data is impose foreign-based rules and regulations whether there has been compliance with made. In addition, local law may require on employees working in another juris- applicable local legislation),Canadian courts that the employer not only create and diction.While the employer may be legal- will defer to the express written intention of retain certain employment records, but ly required to comply with a particular the parties with respect to the choice of law also retain authority over such records law abroad, that compliance will be no and jurisdiction.As a result,it is important to even if they are transferred outside of the defence in a Canadian court if it some way have set out the choice of governing law jurisdiction,and make these records“read- interferes with the rights afforded to and jurisdiction expressly in an employment ily available” for inspection. Canadian employees. contract.Without express provisions dealing It is important to consult with local with these issues, the courts will generally Embracing Differences counsel,preferably before the first employ- decide the matter of law and jurisdiction Multinational companies should pay heed ee is hired. Standard corporate documents, based on a number of factors,including but to regional and national differences,partic- including offers of employment and not limited to the location in which the ularly as it relates to employment matters. human resources policies and procedures, employee spent the majority of his or her That’s because not all employees are the will need to be amended to ensure compli- time performing the services. same. A recent survey found that Canadian ance with local law. Immigration and taxation issues clearly employees are more loyal to an organiza- arise when transferring talent. These rules tion as compared to their American coun- Transferring Talent are complex, and experts should be con- terparts. The same survey found that A significant advantage of having a global sulted prior to finalizing any transfer plan. employees in China value benefits more workforce is the ability to share talent than learning and development opportuni- across borders. A recent survey suggests Human Resources Information ties, and that the opposite is the case for that more multinationals are in fact doing Many multinational employers seek to cen- employees in Sweden. just that. A 2008 survey showed that inter- tralize their human resources information national subsidiary-to-subsidiary transfers either by outsourcing information storage Laura Cassiani is an associate in the are on the rise (Mercer International to a single third-party provider or by stor- Labour/Employment Law Group at Miller Assignments Survey 2008). ing the data centrally at a head office. Thomson LLP in Toronto (lcassiani@ A transferred employee may be subject However, there may be local privacy laws millerthomson.com). PRINTEMPS 2009 CCCA Canadian Corporate Counsel Association 39