AIDE MEMOIRE

Employment Laws of the United States and District of Columbia Applicable to Non-Diplomatic and Non-Civil Service Employees of Permanent Missions to OAS

I. INTRODUCTION
II. BACKGROUND
III. EMPLOYEE RIGHTS TO SALARY AND BENEFITS
IV. INCOME TAX OBLIGATIONS
V. EQUAL OPPORTUNITY AND SAFETY IN THE WORK PLACE
VI. ENFORCEMENT OF LABOR LAWS AGAINST DIPLOMATIC MISSIONS REGARDING STAFF MEMBERS WHO ARE NEITHER MEMBERS OF THE FOREIGN SERVICE OR CIVIL SERVICE OF A FOREIGN GOVERNMENT WITH THE CORRESPONDING DIPLOMATIC OR MISSION-SUPPORT STAFF VISA

I. INTRODUCTION

Serveral permanent missions to the Organization of American States ("OAS") have requested a legal opinion on the laws governing employment in the United States with a view of applying those laws, to the extent feasible, to their non-civil service and non-foreign service staff ("non-diplomatic staff") [1]. The labor laws of the United States include legislation, regulations, and jurisprudence at both the federal and state level. Within the District of Columbia, both federal and District of Columbia law apply.

We understand that the governments that requested this opinion have already made the decision to apply the labor laws of the United States to their non-diplomatic staff who are not entitled to the rights, benefits, and protections of the national laws governing their civil service and their foreign service. Thus, this Memoranda will not address at length the question of whether the diplomatic missions of foreign governments in the United States are obligated under international law and under the laws of the United States to apply those labor laws to those non-diplomatic staff members. Rather it assumes that the governments that requested this opinion are committed to treating their non-diplomatic staff just as any private-sector employer is obligated to treat its employees in Washington, D.C.

The major part of this Aide Memoire is devoted to explaining the basic labor laws applicable to private employers in the District of Columbia and how an OAS Permanent Mission might proceed to observe them. The final part of this Aide Memoire discusses briefly the jurisdictional questions and issues relating to judicial enforcement that may arise in the event a non-diplomatic employee of an OAS Permanent Mission decides to pursue legal action against that Mission in relation to its obligations and his rights under the labor laws of the United States and the District of Columbia.

II. BACKGROUND

Compared to the labor laws that prevail throughout much of Latin America, the Caribbean, and Western Europe, the labor laws of the United States are not overly protective of the worker. Up until the early part of this century, the same principles of freedom of contract which governed commercial transactions also dominated the labor marketplace. Employers in the United States established salary levels and benefits based on market conditions. State legislatures and courts were reluctant to intervene to establish minimum wages, benefits, and standards in light of the prevailing jurisprudence which held that the right to contract was a fundamental right of employers not to be regulated by the Government, absent compelling circumstances, under the substantive due process clause of Fourteenth Amendment to the United States Constitution [2] See, e.g., Lochner v. New York, 198 U.S. 45 (1905)(minimum hours laws declared invalid); Adkins v. Children's Hospital, 261 U.S. 525 (1923)(minimum wage law struck down). Similarly, the federal government refrained from passing legislation to regulate the work place because of the prevailing view that the authority to adopt such regulations, if it existed at all, had been relegated to the states under the Tenth Amendment of the United States Constitution [3] and was not included in the federal government's authority under the Constitution's Commerce Clause. See U.S. Constitution, Article 1, Section 8.[4]

This began to change during the second decade of the twentieth century when the U.S. Supreme Court upheld the authority of State Governments to adopt legislation requiring more humane conditions in the work place. In 1917, the Supreme Court affirmed the constitutionality of an Oregon law establishing maximum hours for child labor, which had been challenged as unconstitutional under the substantive due process clause. See, Bunting v. Oregon, 243 U.S. 426 (1917)(state maximum hours laws for children upheld). The Bunting case proved to be a seminal case for a subsequent line of decisions which has since firmly established the authority of State Governments to regulate the work place. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937)(minimum wage law for women upheld, reversing Adkins); Day-Bright Lighting, Inc v. Missouri, 342 U.S. 421 (1952).

Up until the mid-1930's, the jurisprudence of the Supreme Court held that the adoption of national legislation for the purpose of regulating labor was an impermissible use of federal authority under the Commerce Clause because it infringed upon the residual powers of State governments under the Constitution's Tenth Amendment [5]. In 1936, however, the Supreme Court adopted a broader interpretation of the commerce clause and affirmed the constitutionality of the federal government's authority to regulate and sanction unfair labor practices in management's relations with organized labor. See National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 57 (1937). Several years later, the Supreme Court upheld for the first time the authority of the Federal Government to promulgate minimum labor standards as a corollary to its authority to regulate commerce. See United States v. Darby, 312 U.S. 100 (1941). Today, the federal government's authority to adopt labor legislation governing businesses which affect interstate commerce is generally accepted.

Notwithstanding the breakthroughs in constitutional doctrine, the labor laws in force throughout most of the United States are still relatively underdeveloped compared to those of other "Western Countries." For example, there are no national laws or laws in the District of Columbia requiring employers to provide employees with notice prior to termination or termination indemnities. Similarly, there are no laws requiring mandatory health insurance coverage for employees, paid maternity leave, paid sick leave, or mandatory paid vacation leave. And although many employers offer such benefits to remain competitive in the marketplace in recruiting and retaining quality employees, others do not.

There is, however, local and federal legislation providing for social security in the form of a minimum pension for retirement and disability funded with employer and employee contributions and medical insurance for the poor and elderly. Also there is legislation setting minimum wage levels, establishing the maximum normal workweek, and requiring overtime compensation for non-professional and non-managerial level employees for required over-time duty. Finally, there is a regime of laws designed to assure worker equal opportunity and safety in the work place. Those laws guaranty freedom from discrimination based on age, sex, sexual preference, color, race, religion, disability and national origin; freedom from sexual harassment; the right to union affiliation and collective bargaining; and the right be free from unreasonable physical hazards in the work place. It is to a discussion of those provisions that we now turn.

 III. EMPLOYEE RIGHTS TO SALARY AND BENEFITS

A. Salary (Minimum Wage and Overtime)

The Fair Labor Standards Act ("FLSA") and the laws of the District of Columbia, 29 U.S.C. 207(a)(a) and D.C. Code §36-220(c) requires every employer within the District to pay its employees the minimum wage. Currently, the amount of the minimum wage is $5.15 per hour [6]. Any employer who requires an employee to work more than forty hours in a week must pay that employee at a rate of not less that one and one half times that employee's regular rate [7].

B. Worker Compensation Insurance

The worker compensation laws of the District of Columbia provide economic security to employees victimized by a worker-related injury, illness, or death. See D.C. Code §36-301 et seq. The law establishes mandatory compensation levels for job related injuries, illness and death. It requires every employer in the District of Columbia to maintain an insurance policy for its workers that will guaranty payment of the statutorily fixed sums to its employees so injured. A list of companies provided that insurance may be obtained by calling the National Council of Compensation Insurers at 1-800-622-4217, or by contacting the D.C. Government's Office of Worker Compensation in the Labor Standards Division of the D.C Department of Employment Services. An employer may also seek permission from the Office of Worker Compensation to be self-insured for responding to worker compensation claims. See D.C. Municipal Regulations, Title 7, Chapter 2, §217.

The compensation which a worker receives in payment for his work-related injuries is the employee's exclusive remedy against his employer for such injuries. Generally, the employee cannot sue his employer in tort for such injuries, unless the employee is unable to recover worker compensation due to the employer's breach of his duty to obtain the insurance. See D.C. Code §36-304.

C. Unemployment Insurance

The District of Columbia's Department of Employment Services manages an unemployment insurance program. The purpose of the program is to provide temporary benefits to workers who lose their jobs through no fault of their own and who remain able and available to work. The program contains a unemployment insurance trust fund which is financed through a tax collected by the D.C. Department of Employment Services from employers in the District of Columbia. Costs related to administering and firming-up the fund are funded,in part, through the Federal Unemployment Tax ("FUTA") payable to the Internal Revenue Service of the United States Government. See 22 U.S.C. §3301 et seq. The taxes are due and payable on a quarterly basis. D.C. Code §46-101 et seq. See Unemployment Insurance Compensation Handbook, (D.C. Department of Employment Services).

Generally, non-profit organizations, international organizations, and foreign governments are exempt from the unemployment taxes. See 26 U.S.C. §3306(6)(11); D.C. Code §46-101. Nonetheless, the Unemployment Compensation Act provides that any employer not otherwise subject to its provisions may elect to become covered. See 26 U.S.C. §3309. To do so, it must request permission to participate in the program from the Office of Unemployment Compensation of the D.C. Department of Employment Services [8].

Foreign Governments that elect to so participate in the program must pay the unemployment tax assessed by the District of Columbia Government on a quarterly basis. They are, however, exempt from the Federal Unemployment Tax. See 26 U.S.C. §3306 and 3309.

The D.C. Government assesses the amount of the tax as a percentage of the total wages paid to the covered employees. For new participants, the percentage is 2.7% for the first three or four years that the employer participates [9]. After that, the District of Columbia adjusts the rate based on the employer's experience. Thus, employers with a record of instability and whose former employees have had to draw down from the program's funds will pay more. Those with stable employment and few claims from their former employees will pay less [10].

In lieu of the unemployment tax described above, governments and non-profit organizations have the option under D.C. law of paying to the D.C. unemployment fund a sum each quarter which will permit the fund to recover all payments made to the employer's employees for unemployment insurance payments. The D.C. Government computes and periodically adjusts the amount of that sum in accordance with the payments and employment history of the employer. See §46-103(h).

Only staff members who are terminated for reasons beyond their control are eligible to receive compensation from the unemployment trust fund. Thus, a staff member who is terminated for disciplinary reasons or who voluntarily resigns is not eligible for the funds. See D.C. Code §46-108. Also, to be eligible for benefits, a former employee must prove that he is actively seeking alternative employment.[11]. The D.C. laws provide an administrative hearing process for processing appeals of decisions by the D.C. Government to deny claims. Id, §46-112- 115.

The maximum unemployment benefit payable is based on a formula which takes into account the staff member's income over the preceding twelve months and the staff member's highest quarterly wages during that period. To compute the weekly benefit to be paid, the Department of Employment Services divides the amount of wages for the highest quarter by 26. Thus, if the wages for the highest quarter are $2,600, the weekly payment to the applicant will be $100. The sum is payable for a maximum of twenty-six weeks or until the applicant receives an amount equal to what he earned during the twelve month period prior to losing his job, whatever comes first. The law also establishes a maximum weekly benefit which equals fifty percent of the average weekly wage of all persons covered by the unemployment insurance program. In 1995, the amount of the maximum weekly benefit was fixed at $347. See Unemployment Insurance Compensation Handbook, "Benefits," at p. 11; D.C. Code §46-108.

D. Social Security

The Social Security system operated by the United States Government provides retirement and disability pensions to participants. It also provides medical insurance for persons who meet poverty guidelines or who are retired under social security pensions. Generally, all employers and their employees must participate in and fund the system. Employers contribute 6.2% of the first $65,400 [12] they pay each employee in salary or wages, and each employee contributes an amount equal to the amount contributed by his employer -- i.e., a total of 12.4%. See 26 U.S.C. §3101, 3111. Self employed individuals pay the full 12.4%, but they receive a rebate of approximately 25% of that amount in the form of a federal tax credit. For the medical insurance portion of social security, there is an additional tax called the "Medicare Tax". The employer pays 1.45% over the total wages paid to the employee; the employee pays another 1.45%. Self employed persons pay a Medicare tax of 2.9% of their total earned income. Id.

Articles 33 and 37 of the Vienna Convention exempt from the social security system of the United States diplomatic agents and administrative and technical staff members of the diplomatic missions who are not U.S. Citizens or permanent residents. Section 893(a) of the Internal Revenue code further provides that all employees of foreign governments performing services similar to those provided by employees of the Government of the United States in foreign countries are exempt from U.S. income taxes, including the social security tax, provided they are not U.S. citizens and the country they work for provides a similar exemption to employees of the U.S. Government. See 26 U.S.C. §893(a). Thus, if the foreign government exempts U.S. Government employees from taxation in its territory, only that government's United States citizen employees are obligated to pay the social security tax (or in its place, the self-employment tax, as is the may be) to the United States Government. The rest of its employees are exempt.

The laws of the United States do not obligate foreign governments to withhold social security taxes for its U.S. citizen employees. See 42 U.S.C. §410(a) and 411(c)(2)(C). Rather U.S. citizens are considered as "self-employed" for purposes of the social security system and they pay the entire contribution themselves, which is known as the Self-Employment Tax. The same is true of U.S. citizens working for international organizations within the United States as well; however, the international organizations generally reimburse those citizens, approximately 25% of that amount -- that is, the additional 6.2% the taxpayer must pay because he is treated as self-employed rather than as an employee, less the tax credit the taxpayer receives for that payment. In the case of the OAS General Secretariat, the United States Government funds the total cost of this reimbursement by way of a special contribution to the OAS by way of a tax reimbursement agreement.

Because they are not citizens, Permanent Residents who work on the diplomatic or technical/administrative staff of foreign missions are not required to participate in social security. They may, however, on their own volition, so participate as self-employed individuals [13].

A foreign government wishing to provide U.S. social security benefits to its employees in the United States who are not covered by its civil service or social security system should encourage those employees to enroll as self-employed persons in the program. Then, if that government wishes to provide them with a benefit equivalent to what those persons would receive were they employees in the private sector, it could offer to reimburse half of the self-employment tax (including half of the medicare social security tax) they pay, less the tax credits they receive for that payment, as is done by the major international organizations in the United States.[14]

E. Health Insurance

There are no requirements under federal laws or the laws of the District of Columbia that require a private employer to maintain health insurance for its employees. Nonetheless, once an employer makes the decision to provide such insurance, certain regulatory statutes apply. They are the Consolidated Omnibus Budget Reconciliation Act of 1945 ("COBRA") and the Health Insurance Portability and Accountability Act ("HIPAA"). See 26 U.S.C. §1181 et seq.

COBRA requires that the health insurance plan offered by an employer must provide the employee and his dependents covered by the plan with the option of continuing their coverage under that plan for a limited period following the employee's separation from service. That period, is generally eighteen months, but it be extended for up to thirty-six months under certain circumstances. See 49 U.S.C. §1162.

HIPAA contains provisions which prohibit health plans offered by employers from discriminating against employees based on prior health history and claims experience. It further limits the conditions under which such plans can deny coverage for pre-existing conditions and pregnancy-related medical assistance. See 29 U.S.C. §9801(a).

F. Annual Leave, Holidays, and Sick Leave

As stated earlier, the laws of the United States and the District of Columbia do not require a private-sector employer to provide annual leave with or without pay or sick leave with pay. Similarly, there is no law that obligates private-sector employers to allow employees to take national holidays as leave, with or without pay.

Nonetheless, under the civil service laws of the federal government and the District of Columbia government, employees are entitled to both paid and unpaid sick leave and paid vacation leave from two to four weeks, depending on seniority. Paid sick leave is accumulated at a rate of so many hours per two-week pay period. Also, government employees are entitled to paid leave for a number of national holidays, including January 1, Martin Luther Kings Birthday (January), President's Day (February), Memorial Day (May), Independence Day (July) Labor Day (September), Veteran's Day (November), Thanksgiving Day (November), and Christmas (December). Also, the federal and local government often allow civil servants to take paid or unpaid leave for inclement whether, depending on the severity ("snow days").

Similarly many private-sector employers voluntarily provide their employees with paid annual leave, sick leave, and holiday leave. Some do so because they have negotiated Union contracts which require it. Others offer those benefits gratuitously in order to remain competitive for recruiting and retaining staff in the labor marketplace, or because it is the customary and usual practice within their industry, or because it serves to increase worker morale and productivity.

G. Unpaid Family Leave and Medical Leave

Under the federal Family and Medical Leave Act and District of Columbia Medical Leave Act, an employee who has worked at least 1,000 hours for an employer is entitled to take unpaid leave under the following circumstances:

a. The birth of a son or daughter and the corresponding post-natal care required;

b. The adoption or acceptance of a child by the employee for foster care;

c. The placement of a child with the employee for whom the employee permanently assumes and discharges parental responsibility;

d. The care of a family member for the employee who has a serious health condition;

e. The inability of the employee to perform his functions due to a serious medical condition.

See 29 U.S.C. §2612 et seq.; D.C. Code §36-1301 et seq.

The leave entitlements under the District of Columbia law are more generous than those under the federal law and apply to employers and employees in the District of Columbia. Under the D.C.[15] statute, an eligible employee is entitled to take a total of up to sixteen weeks of family and medical leave each year. The leave is without pay. Nonetheless, an employee has the right to return to the position he had when he began the leave or to an equivalent position with equivalent employment benefits, salary, and conditions of employment.

H. Parental Leave

The District of Columbia requires employers to allow employees who are parents to take up to 24 hours of leave within a twelve month period to attend or participate in school-related events for his or her child. The employee must notify the employer at least ten calendar days prior to the event, unless the employees need to attend the event is unforeseeable. The leave is unpaid, but may be credited against any paid leave the employer provides for employees. See D.C. Code §26-1602.

IV. INCOME TAX OBLIGATIONS

In the Washington Metropolitan areas, most persons pay income taxes to federal, state, and local governmental authorities. As stated above, Section 893(a) of the Internal Revenue Code generally exempts diplomatic and other mission staff from payment of income taxes. Similar provisions under the corresponding local laws of Maryland, Virginia, and the District of Columbia exempt diplomatic mission staff from state and local taxes. There are, however, two exceptions -- U.S. citizens and permanent residents working for missions who have waived their Section 893(a) immunity from taxation by signing a waiver under Section 247(b) of the Immigration and Naturalization Act.[16]

The tax laws at both the state and federal level require private-sector employers to withhold income taxes of their employees for each pay period and pay them directly to the Federal Government. See, e.g. 26 U.S.C. §3402. Nonetheless, the diplomatic missions of foreign governments are exempt from this requirement. As with the Self-Employment (social security) Tax, U.S. citizen and permanent resident employees of the missions must make their own income tax payments directly to the Internal Revenue Service ("IRS") and the corresponding state or D.C. Department of Revenue on a quarterly basis. See 3d Restatement, Foreign Relations Law of the United States, §464, Reporters Notes, Note c "Employment," at p. 466. [17]

In establishing the salaries of its U.S. taxpaying staff members, a foreign government wishing to treat them as if they were employed by a private sector employer should take into account the high rate of taxation of income in the United States. In the upper income levels, marginal rates may go to 39% for federal taxes and as much as 11% for the District of Columbia [18]. The system is progressive so that the average effective rate of federal income taxation is somewhat less -- probably in the range of 20 to 25% for most employees. To achieve a reasonable level of equal pay for equal work between the U.S. taxpayers and the non-U.S. tax payers on the mission staff, the mission may wish to provide some kind of supplement the salaries of the taxpaying staff.[19]

V. EQUAL OPPORTUNITY AND SAFETY IN THE WORK PLACE

A. Prohibition Against Discrimination on the Basis of Age

The Age Discrimination in Employment Act ("ADEA") prohibits an employer from adversely discriminating against any individual who is at least forty years old on the basis of age. Specifically, an employer cannot refuse to hire and cannot discharge anyone at least 40 years old on the basis of his age. Similarly, it cannot establish salary, benefits, and other privileges in the work place in a way that adversely discriminates against persons over forty years old for reasons of age. An employer cannot limit, segregate, or classify employees in any way which would deprive those who are at least 40 years old of employment opportunities or which would adversely affect their status on the basis of his age. See 42 U.S.C. §12111 et seq. Discrimination on the basis of old age is also prohibited under the Human Rights Law of the District of Columbia. See D.C. Code §1-2511, et seq.

B. Equal Opportunities for Individuals with Disabilities

The Americans with Disabilities Act ("ADA") prohibits employers [20] from discriminating adversely in the work place against qualified individuals with disabilities. Specifically, discrimination against a "qualified person with a disability" is forbidden in the application process and decisions over hiring, advancement, discharge, compensation, job training, and other conditions and privileges of employment. See 42 U.S.C. §12112.

The Act defines a "qualified person with a disability" as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." (Emphasis added). Persons with disabilities may include the blind, the mentally retarded, persons with psychological problems, persons who do not have full use of their limbs, persons with severe allergies, and other similarly disabled individuals. The Act does not protect employees addicted to drugs or alcohol. See 42 U.S.C. §12114. Nonetheless, the United States Supreme Court held in June 1998 that the Act protects employees with AIDs. See Bragdon v. Abbott, 66 U.S.L.W. 4601 (June 25, 1998).

In the absence of hardship, an employer must make "reasonable accommodation" to allow the employee to function in the work place. This may required installing special work stations, providing for flexible work hours, and even providing for additional employees to assist the disabled individual.

C. Prohibition Against Basing Pay on Sex of Employee

The federal Equal Pay Act of 1963 prohibits an employer from paying employees of one sex at a rate less than the pay of employees of another for equal work -- that is, jobs requiring equal skill, effort, and responsibility, and which must be performed under similar working systems. The Act allows exceptions to this policy based on seniority, merit, higher production, or other similar factors not related to sex. See 29 U.S.C. §206.

D. Prohibition Against Discrimination Based on Race, Color Religion, Sex or National Origin

Title VII of the federal Civil Rights Act of 1964 prohibits an employer from discriminating against employees based on race, color, religion, sex, or national origin. Specifically, the Act states that an employer may not fail or refuse to hire, or discharge an individual, or otherwise discriminate against an individual as to compensation and other terms, conditions, and privileges of employment because of the individual's race, color, religion, sex or national origin.

This statute has given birth to a rich legacy of jurisprudence for the almost thirty-five years it has been in force -- much of it at the Supreme Court level. Sexual discrimination includes any adverse decision against an employee based on sexual preference, pregnancy, childbirth, and related medical conditions. Sexual discrimination also includes sexual harassment under the pertinent jurisprudence on the Act. Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986); Oracle v. Sundower Offshore Services, 118 S.Ct. 998 (1998). Religious discrimination includes practices in the work place which interfere with the employees observance of his religion, unless the employer can show that accommodating the employee results in a serious hardship to the enterprise.

Like other federal anti-discrimination statutes applicable to private sector activity based on the commerce clause, Title VII only applies to private employers affecting interstate commerce with over fifteen employees; however, it also applies to governmental entities. In the District of Columbia, employers who escape the coverage of Title VII because of their size or the nature of their business are nonetheless prohibited from discriminating in the work place on the basis of race, color, religion, sex, and disability under the District of Columbia Human Rights Statute. See D.C. Code §1-2501.

Employers may successfully defeat claims of discrimination in violation of the D.C. Human Rights laws by proving a bona fide business necessity for the discriminatory action alleged. Id., §1-2502. Bona fide business necessity "cannot be justified by the facts of increased cost to business, business efficiency, the comparative characteristics of one group as opposed to another, the stereotyped characterization of one group as opposed to another, and the preferences of co-workers, employers, customers or any other person." Id. 1-2503.

E. Prohibition Against Other Forms of Discrimination

The District of Columbia Human Rights Laws is more restrictive than Title VII of the federal Civil Rights Act of 1964 because it prohibits discrimination by employers on a series of additional grounds. They include marital status, personal appearance, family responsibility, matriculation, political affiliation, physical handicap, source of income, and place of residence or business. As with claims brought for discrimination on the basis of color, race, sex (including pregnancy and childbirth), sexual preference, age and national origin, an employer may use bona fide "business necessity" as a defense. See D.C. Code §2501, 2303

F. Restrictions on the Hiring of Minors

Minors are individuals under the age of eighteen. The laws of the District of Columbia prohibit the hiring of minors under the age of fourteen except under exceptional conditions. See D.C. Code §36-501. Those laws also establish the maximum number of hours an employer may require a minor to work -- no more than six consecutive days in a week, or more than 48 hours in any 1 week, or more than 8 hours in any 1 day. They also forbid employers from assigning minors to work in the very early hours of the morning and late at night. Id., at §36-502. No employer may assign a minor to work in any place or at any job which is dangerous or "prejudicial to the life, health, safety or welfare of such minor." Id., at §36-503. The District of Columbia requires every employer who hires a minor for work in a place of business to obtain a Work or Vacation permit from the D.C. Board of Education which provides educational and identification information on the minor employee. Id., at §36-507-514.[21]

G. Prohibitions on Use of Lie Detectors

The laws of the District of Columbia prohibit employers from using lie detector tests during any hiring procedure. See D.C. Code §36-802. Violation of those laws constitutes invasion of privacy, and an employee whose right to privacy is so violated may seek compensatory damages in tort from his employer by pursuing a civil action.[22]

H. Occupational Health and Safety

The federal Occupational Health and Safety Act ("OSHA") and the District of Columbia Occupational and Health Act require every employer "to furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." See 29 U.S.C §654 et seq.; D.C. Code §1201 et seq. They also require employees and employers alike to comply with federal and local occupational health and safety standards, promulgated by the pertinent Federal and local authorities. Those standards cover a large range of subjects, such as requirements for dealing with toxic substances, air quality, lighting, maximum hours that employees will be allowed to use certain kinds of machinery, including, for example, personal computers. See 29 CFR §1900 et seq. [23]

I. Collective Bargaining and Right to Union Membership

All employees (other than those designated as supervisors) in the District of Columbia have the right to affiliate with labor unions and to engage in collective bargaining through those unions. That right is protected and enforced under both the National Labor Relations Act and related federal statutes, as well as the District of Columbia Human Rights Act. See 29 U.S.C. §151-69; D.C. Code §1-2501, 2502, 2512.

Section 7 of the National Labor Relations Act specifically recognizes the right of employees who are not supervisors "to self organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection." Section 8 of the same Act goes on to declare illegal certain employer actions, including "restraint, interference or coercion of employees in the exercise of their Section 7 rights, domination of unions, discrimination in terms of employment so as to discourage union membership, and refusal to bargain in good faith with the majority employee representative." See Basic Text on Labor Law, Unionization and Collective Bargaining (West, 1976), at pp. 5, 796-818.

For its part, Section 1-2502 of the District of Columbia Human Rights Act prohibits any employer from adversely discriminating against an employee on the basis of membership in a labor union or other labor organization. That law also prohibits labor organizations from denying membership, employment opportunities, and other benefits to members on the basis of race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, family responsibilities, physical handicap, matriculation, or political affiliation. See D.C. Code §2-2502, 2512.

VI. ENFORCEMENT OF LABOR LAWS AGAINST DIPLOMATIC MISSIONS
REGARDING STAFF MEMBERS WHO ARE NEITHER MEMBERS
OF THE FOREIGN SERVICE OR CIVIL SERVICE OF A
FOREIGN GOVERNMENT WITH THE CORRESPONDING
DIPLOMATIC OR MISSION-SUPPORT STAFF VISA

A. Immunity from Jurisdiction of U.S. Courts

A full discussion of the laws covering the jurisdiction of U.S. Courts and administrative authorities over the labor practices of Diplomatic Missions is beyond the scope of this Aide Memoire. Nonetheless, we would be remiss in failing to make several observations regarding that important subject.

It is generally agreed that the employment of persons who enter the United States to work in diplomatic missions under diplomatic or mission-support staff visas (A-1, A-2, G-1, G-2) is outside the jurisdiction of United States authorities under the Vienna Convention on Diplomatic Relations, United States Foreign Sovereign Immunities Act, and general principles of international law. Cf Restatement 3d, Foreign Relations Law of the United States, §464, Reporters Notes, Section c "Employment, at p. 466. The conventional wisdom is that the labor rights of those persons are governed by the laws of the sending country. Indeed, we know of no cases where a U.S. Court or administrative agency has held a foreign mission accountable to U.S. labor laws regarding its staff members who hold diplomatic or mission-support staff visas.

The law is more ambiguous regarding the rights of those persons without diplomatic or mission-support staff visas. They mostly include U.S. citizens and permanent resident nationals of other countries, but they also could include residents of other countries on other temporary visas, including, but not limited to the student/practical training "F" and "J" visas, temporary worker "H" visas, and tourist and businessmen's "B-1 and B-2" visas.

In 1976, the United States Congress adopted the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. §1601 et seq., which recognizes the sovereign immunity of foreign governments except with regard to the government's commercial activities in the United States or its commercial activities elsewhere having a direct effect in the United States. Id., at §1605 [24]. Courts in the United States have held that commercial activities for purposes of the statute includes labor relations with certain types of employees of foreign governments. They base that conclusion on the legislative history of the FSIA, which states, in pertinent part:

Also public or governmental and not commercial nature would be the employment of diplomatic, civil service, or military personnel, but not the employment of American citizens or third country nationals by the foreign state in the United States. . . . Activities such as a foreign government's employment or engagement of laborers, clerical staff or public relations or marketing agents . . . . would be among those included within the definition [of commercial activity].

H.R.Rep. No. 94-1487, at 16 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6615.

Thus, in Elliot v. British Tourist Authority, 986 F.Supp. 189 (S.D.N.Y. 1997), the United States District Court for the Southern District of New York held that an agency of the British Government in the United States, the British Tourist Authority, was not immune from jurisdiction in a claim brought by a U.S. citizen for discrimination under the Age Discrimination in Employment Act ("ADEA"). Similarly, in Zveiter v. Brazilian National Superintendency of Merchant Marine, 833 F.Supp 1089 (S.D.N.Y. 1993), that same federal court held that an agency of the Brazilian government in the United States was subject to its jurisdiction in a claim brought for sexual harassment under Title VII of the Civil Rights Act of 1964 and the New York State Sexual Harassment statutes.

Yet the Elliot and Zveiter cases can easily be distinguished from a case involving a diplomatic mission in the United States. Both those cases involved suits against agencies of a foreign government engaged in activities related to commerce. The functions of a diplomatic mission, however, are exclusively diplomatic.

Based on that distinction, the United States District Court for the Northern Illinois District (Chicago) initially dismissed a sex discrimination case brought against the Consulate General of Israel for lack of jurisdiction under the Foreign Sovereign Immunities Act. Ferdman v. Consulate General of Israel, 997 F.Supp. 1051 (N.D. Illinois). The court drew the distinction between the functions of a diplomatic mission, such as a consulate, and those of an agency operated by a foreign government for commercial purposes. It said:

It cannot be disputed that the Consulate is a "foreign state . . . . That may be contrasted with (say) the operation of EL Al Israel Airlines, which though owned and operated by the Israeli Government clearly fits with Title VII's definition of employer.

It went on to conclude that the court "has no more power to adjudicate liability for the exercise of the internal affairs of the Consulate than it would be in a position to control any other sovereign activities of the State of Israel."

Nonetheless, upon the plaintiff Ferdman's petition, the Court subsequently reversed and vacated its earlier judgment. The District Court's reversal of its earlier decision was correct because the legislative history of the FSIA does not make such a distinction between governmental entities based on the nature of their activities. Rather, as suggested by District Court in the Southern District of New York, the legislative history of the FSIA suggests that it is the nature of the employee's functions which is important in determining a foreign government's liability for employment-related claims brought by non-diplomatic and non-civil service staff of the foreign government. According to the text of the legislative history relied on by the District Court in the Elliot and Zveiter cases, there is no immunity with respect to suit brought by such employees who are "laborers, clerical staff or public relations or marketing agents."

The best that can be said about the extent of foreign government immunity over claims brought by personnel who are not foreign service or civil service employees of that government is that the law is not totally clear. Until there is a definitive decision on the issue by the United States Supreme Court, consistent decisions by several Federal Circuit Courts of Appeals, or clarification by way of additional Congressional legislation, the law will remain subject to differing interpretations. Under those circumstances, a government wishing to reduce its risk of liability for violation of those laws is best advised to make every reasonable effort to comply with them in its treatment of its non-diplomatic and non-civil service employees who are in the United States without a diplomatic or mission-support staff visa.

B. Enforcement

Notwithstanding the possibility that a U.S. court might take jurisdiction over a claim by non-diplomatic and non-civil service employees for violation of U.S. labor laws, actual enforcement of those laws and any adverse judgment against the mission would not be easy. First, it would be difficult for a plaintiff to prove his claim. The records and premises of a foreign mission are inviolable under the Vienna Convention, and the diplomatic and mission support staff with the corresponding visas cannot be compelled to comply with subpoenas for to provide evidence against the mission or for the plaintiff.

Second, even in the event that a plaintiff is able to gather enough evidence to prove his case against the mission and a judgment against the mission is issued, enforcement is problematic. The Foreign Sovereign Immunities Act provides that the property of a foreign state is immune from attachment, arrest, and execution except insofar as it is used for a commercial activity. See 28 U.S.C. §1609-10. The purpose of a diplomatic mission is not commercial and thus its facilities and properties are not used for commercial purposes. Therefore, it is unlikely that a court would attach or execute against that property to satisfy a judgment against the mission.

A judgment of the United States District Court for the Southern District of New York seems to support the notion that the assets of a diplomatic mission are immune from attachment. In Foxworth v. Permanent Mission of the Republic of Uganda to the United Nations, 796 F.Supp. 761 (S.D.N.Y. 1992), the court held that a personal injury plaintiff who had obtained a default judgment against the mission for injuries suffered in an automobile accident was not entitled to attach and execute against the mission's bank account. The court cited the United Nations Charter, the Headquarters Agreement with the United States Government, and the Vienna Convention on Diplomatic Relations as the basis for its holding. In pertinent part, it stated:

Attachment of defendant's account by the United States Marshal will, according to defendant, force it to cease operations. This is contrary to the obligation of the United States to provide defendant the immunities necessary for operation under the United Nations Charter and its obligation to accord "full facilities" for the performance of the mission's functions under the Vienna Convention.

Id., at p. 763.

The provisions of the Foreign Sovereign Immunities Act and the Foxworth case do not mean that it is impossible to satisfy a judgment against a foreign government. Rather they simply underscore the seriousness of the obstacles that must be overcome. And although the likelihood of a plaintiff's success in an effort to attach and execute against the assets of a foreign mission are remote, he is still able to attach and execute against any assets the foreign government may have in the United States for commercial purposes. See 28 U.S.C. §1610(d).

William M. Berenson
Director,
Department of Legal Services,[25]
Office of the Secretary General,
OAS General Secretariat

August 26, 1998

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    [1] For purposes of this paper, the term "non-diplomatic staff" is defined as employees of the mission who are neither members of the government's foreign service or of its civil service and who do not have diplomatic or mission support staff visas in the United States. The term "diplomatic staff" refers to those mission employees who are members of a government's civil foreign service or of its civil service and who are in the United States with a diplomatic or mission support staff visa. diplomatic and mission support Staff visas are the A-1, A-2, G-1, and G-2.