International Law and Employment Law: A Global perspective on dismissals and disciplinary sanctions Jennifer Deitloff Senior Counsel ConAgra Foods, Inc. Ming Henderson Partner Seyfarth Shaw (UK) LLP Amy Loggins AGC – Global Labor & Employment Counsel Harsco Corporation Meredith Stone Vice President General Counsel Americas NACCO Materials Handling Group, Inc.

Audience Poll: New to In-House? Experience in Employment Law? In-House Labor/Employment Specialist? 5 years or more? Generalist? 5 years or more? Experience in International Employment Law? None of the above – just wandered in 2

Audience Poll: What areas do you support? United States Only Canada/Mexico South/Latin America Europe Asia Europe/Middle East/Africa Global/Other Multi-jurisdictional A bit of everything 3

Roadmap for our Session General principles/concepts Key distinctions from U.S. Hypothetical scenario on a global RIF and Changing Terms and Conditions Disciplinary actions (various scenarios) Practical considerations & questions throughout the session 4

General Principles/Concepts Key distinctions from U.S. model: At-Will employment vs employment contracts Works councils and other employee reps Labour Codes and industry CBAs Mandatory severance obligation Data privacy Attorney-Client Privilege 5

6 USA (non-union)Rest of World No employment contractEmployment contract Individual negotiationsCollectively agreed terms At-will employment Unfair dismissal/nullity of dismissal – when and how you can dismiss Limited liabilityExtensive liability Limited employee benefits Extensive employee benefits – state and company

7 USA RIF (federal law only) EMEA RIF Trigger: number of job losses over fixed period (30 days) Trigger: number of job losses over fixed period (typically 30 to 90 days) Federal and state WARN Acts impose minimum 60-day notice of termination Minimum notice applies by law/collective agreement/contract for any termination. WARN does not require consultation or negotiation Where triggers met, consultation and in some cases negotiation/agreement required In practice, can avoid WARN period by paying in lieu of notice PILON not possible in all countries. Scope for individual settlement, but Works Council may still have a claim.

Hypothetical Scenarios – A case study 8

USGlobal, Inc., a U.S. based company, has just announced the acquisition of MultiCountry, Inc. USGlobal has operations in the US, Canada, Brazil, Mexico, Japan, Australia and the UK. MultiCountry, Inc. currently operates in the UK, France, China, Germany, Italy, the Netherlands, Argentina, Chile and Colombia. When the acquisition is complete, MultiCountry, Inc. will be merged into USGlobal, Inc. Management wants to “right size” and reduce the total work force on a global basis by 10 – 15% as well as close redundant operations in Europe and Latin America. Additionally, the company wants to terminate all existing incentive compensation plans and institute a new incentive plan globally. The CHRO wants to understand if this plan poses any legal issues that would delay the plan.

Key questions to address: Why? – The business reasoning. How? - From preparation to implementation When? – How soon can RIFs take place How much? - Redundancy costs (direct and indirect) What if? – Implications of getting it wrong (litigation, legal costs, business disruption and reputation, strikes)

Europe -Severance: notice pay/ company policy/ mandatory pay -Social plans/ Works Council -Outplacement -Benefits continuation -Contribution to state funds Middle East -Severance: notice pay/ company policy/ mandatory pay -Ex-pat costs (e.g. return flight back home) Africa -Severance: notice pay/ company policy -Lack of support infrastructure Overview of Restructuring Costs by Region 11 LATAM ‐Severance: notice pay/ statutory pay/ holiday pay & 13th salary (bonus) ‐Approval of labor authority/agency ‐Penalties/fines ‐CBA requirements

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Time to vote (there may be several right answers): 1.No Problem. As part of the acquisition, this can all be reconciled easily. 2.Works Councils will need to be consulted in certain countries. 3.Works Councils and/or unions will need to approve before the changes can be made. 4.In the U.S. – all of this can be done, but not in any other countries. 5.Changes to T&Cs will not trigger any severance obligations as long as employees agree to them. 6.These changes will trigger severance obligations in Europe and Latin America and may be unlawful due to the merger. 13

Changes to Terms and Conditions United States – Easier to implement – Generally – Employment at Will – Remember: ERISA and 409A issues Japan – employee consent is required to change terms and conditions of employment LATAM – Difficult to implement – Consider collective bargaining agreement – Statutory severance payments – Written employment agreements 14

Canada – Statutory notice and severance – Common law severance – Employment Agreements UK/France – Collective consultation process – Trade union or Works council consultation – Government notification and approvals for collective Germany – Must obtain agreement from the works council or apply to a conciliation board – Social plan 15

The new company learns that an employee in China has paid money to a government official to get product approval expedited. The Company learns that an employee in Brazil has falsely certified that a product which is actually manufactured in Japan was made in the U.S. The transaction involves a sale to a government agency in Israel which is being funded though a U.S. government program which requires that only U.S. origin products be supplied. Management in the U.S. wants to fire both employees immediately. How do you advise? 16

Time to vote: 1. Both employees may be immediately terminated. 2.If the employee in China is terminated, severance will be required, but no severance will be required for the employee in Brazil. 3.If the employee in Brazil is terminated, severance will be required, but not for the employee in China. 4.Works councils and/or unions will need to be consulted before any change can be made. 5.None of the above. 17

Things to consider: FCPA/UK Bribery Act/SEC requirements US Government contractor disclosure requirements Process requirements for investigation and disciplinary procedure. Grievance or litigation from employee Statutory Severance Penalties and fines from the government 18

An employee has alleged a co-worker sexually harassed her. What steps do you take and can you take disciplinary action? UK EU LATAM Asia-Pac region 19

An Employee is continually absent and late to work. What steps do you take and can you take disciplinary action? EU (UK, Germany, France as examples) LATAM Asia-Pac region 20

Attorney-Client Privilege: European Commission – No in-house privilege exists Russia & India – No in-house privilege recognized UK – in-house privilege recognized, but courts will distinguish between “legal advice privilege” and “litigation privilege” Netherlands & Germany - in-house privilege recognized, although the law requires certain steps to be taken in order to guarantee the impartiality of the employed lawyer’s conduct. Belgium – in-house privilege recognized China - in-house privilege recognized Brazil - in-house privilege recognized Australia – in-house privilege recognized Canada - in-house privilege recognized South Africa – in-house privilege recognized 21

Practical Considerations: Do not export the U.S. Global vs. Country Specific policies Use of local counsel Complexities of non-U.S. jurisdictions Right to privacy in Europe and some other countries Time: Anticipate spending extra time educating management and working through local hoops Recognize employee rights Resources – You do not have to be an expert in all jurisdictions! 22

Questions? Thank you.