Historically, the National Labor Relations Board (NLRB) has been reluctant to assert jurisdiction through the National Labor Relations Act (Act) over American citizens who are permanently employed by American employers outside the United States. In a departure from a broad application of that policy, the NLRB recently held that “Americans whose permanent relationships are with American firms in the United States do not lose the protection of the Act while on temporary assignment outside of this country, particularly where extending the Act’s protections would not interfere with the laws of another nation.”

The American employer in Asplundh Tree Expert Co., 336 NLRB No. 116 (2001) sent twenty of its domestically-based employees to Ottawa, Canada for a two-week work assignment. The employees, who were represented by a labor organization, protested working conditions while in Ottawa. As a result of their concerted activity, two of the employees were discharged. In its decision, the NLRB found their terminations to be in violation of the Act.

Also notable in the NLRB’s finding was its determination that it is appropriate for the NLRB to assert jurisdiction over the events that took place in Canada. First, the NLRB characterized the assignment in Canada as “brief and temporary” and concluded that the employment relationship existed entirely within the United States. Similarly, the results of the employer’s conduct - the termination of the two employees - were “principally felt” in the United States. Second, the NLRB determined that the assertion of jurisdiction would not interfere with Canadian law. Finally, the NLRB maintained that “it would frustrate the purposes of the Act were we to decline jurisdiction” and deny relief to the discharged employees.

The NLRB’s decision in Asplundh Tree Expert Co. should serve as a reminder to all American companies with employees working abroad to consider the extraterritorial effects of all domestic labor and employment laws - such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the Worker Adjustment and Retraining Notification Act (WARN), as well as the National Labor Relations Act. If you have questions regarding the information contained in this alert, please contact Israel E. Kornstein or the Harris Beach attorney with whom you usually work at (212) 687-0100 or (800) 685-1429.

This legal alert provides brief analysis or comments on matters of labor law. This legal alert does not purport to be a substitute for advice of counsel on specific matters.