CUPA-HR Annual Conference & Expo 2012 Saturday, September 8, :00 – 2:00 p.m. Donald C. Dowling, Jr. International Employment Law Partner White & Case LLP New York City International Symposium “What You Need to Know When Launching a New Campus or Research Project in a New Country”

Roadmap 5 Hypothetical Scenarios What’s at Stake: Unwaivable Local Employment Law Compliance Employment vs. Structural Issues 4 Possible Services-Provider Structures Classification Issues and Expatriate Issues Questions—? 1

5 Hypothetical Scenarios A. New campus in China (Chinese and U.S. professors) B. Joint venture degree program with Brazilian university (rotating in U.S. faculty) C. 10-day annual study abroad program in Turkey (Turkish and U.S. instructors) D. Full-time business development officer/recruiter in India (local Indian, or U.S. expatriate) E. 18-month AIDS research project in Zimbabwe (3 U.S. and Indian graduate students + 2 local staff) 2

What’s at Stake: Unwaivable Local Employment Law Compliance Mandatory employment offerings Written employment agreements or “statements of employment particulars” Mandatory benefits/bonuses (social funds, Brazil FGTS, China/Mexico housing funds, agüinaldo/13 th month pay, profit sharing) Caps on hours; wage/hour laws Mandatory vacation/holidays Severance pay/notice: no employment-at-will outside U.S. As to expats: visas Opt-out/choice-of-law clause rarely enforceable No exception for university employees (contrast non-employee students); no local 501(c)(3) status unless/until affirmatively granted 3

Employment vs. Structured Issues Employees vs. students vs. paid graduate students Employment vs. institutional structure issues Cf. China university rules and “All India Council for Technical Education’s Regulations for Entry and Operations of Foreign Universities in India Imparting Technical Education” Structure issues triggered by employment In-country employee triggering “permanent establishment” and tax filings (and no local 501(1)(3) status) Payroll compliance requires taxpayer ID number—hence locally registered entity 4

4 Possible Services Provider Structures 1. “All in” (local corporate registration; compliance with education laws; 501 (1)(3) equivalent; taxpayer ID number; payroll provider) 2. Independent contractor/consultant – Own company or unregistered 3. “Leased employee” (secondee) employed by another university (possible visa sponsor) or Manpower/Adecco/Kelly 4. “Under the radar” = non-compliance 5 5 Possible Scenarios A. New campus in China (Chinese and U.S. Professors) B. Joint venture degree program with Brazilian university (rotating in U.S. faculty) C. 10 day annual study abroad program in Turkey (Turkish and U.S. instructors) D. Full-time business development officer/recruiter in India (local Indian, or U.S. expatriate) E. 18 month AIDS research project in Zimbabwe (3 U.S. and Indian graduate students + 2 local staff) Need for a visa 5 Possible Scenarios A. New campus in China (Chinese and U.S. Professors) B. Joint venture degree program with Brazilian university (rotating in U.S. faculty) C. 10 day annual study abroad program in Turkey (Turkish and U.S. instructors) D. Full-time business development officer/recruiter in India (local Indian, or U.S. expatriate) E. 18 month AIDS research project in Zimbabwe (3 U.S. and Indian graduate students + 2 local staff) Need for a visa

Classification Issues and Expatriate Issues – Classification: Overseas post-doc student, contractor/consultant, or de facto employee? – Expatriate, secondee, business traveler issues: (tab C) Structuring expatriate postings (tab D) Which country’s laws reach border-crossing employees? (tab E) Employment-context choice of law clauses (tab F) Expatriate checklist (tab G) Duty to protect staff in overseas danger zones (tab H) Severance releases and international employees (tab I) Wage/hour law, international business travelers, and guest workers (tab J) Expatriates, U.S. tax withholding, U.S. social security contributions—and COBRA (tab K) 6

7 Questions? Donald C. Dowling, Jr. International Employment Law Partner White & Case LLP New York City