Wednesday, May 21, 2008
Paul Secunda (Mississippi, for a few more days, then Marquette) has just posted on SSRN his article "The Longest Journey, with a First Step": Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law. Here's the abstract:
One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.
After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and one new path for courts to take in applying employment benefits law in the immigration milieu. First, Congress should amend ERISA to add ERISA Section 4(b)(6) to provide ERISA coverage for American employees working abroad as long as ERISA does not conflict with the laws of a foreign country. Such a law would also make clear that ERISA's extraterritorial application is of a limited nature and does not extend to foreign employees working abroad for American companies or their subsidiaries. Second, Congress should pass comprehensive immigration legislation and include within that legislation a provision which would make clear that documented workers maintain the same rights to employee benefits under ERISA as any other U.S. citizen. Third, courts in the future should consider ERISA policies and the dissenting opinion in Hoffman Plastics to support a conclusion that undocumented workers should remain eligible for appropriate relief under ERISA.
These steps may appear fairly modest for one who wishes to see concrete movement toward a coherent, global employee benefit scheme, but to quote Lao Tzu: "The tallest tree begins as a tiny sprout, the highest monument, as a clod of dirt, the longest journey, with a first step."
This is indeed a much-needed first step, critical now that labor markets, like commodity and product markets, are global.