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The globalization of business and advances in technology have contributed to the increase in expatriate assignments. Global mobility is integral to a successful organization’s talent and overall business strategies as it has been deemed to be a tactical solution to solving skills shortages. Although these organizations send some of their employees on international assignments, they inevitably struggle with the interplay between the expatriate assignment strategy and the legal ramifications of a particular foreign posting. By nature, global mobility programs are expensive, often resulting in labor costs two or even three times the costs of domestic employment. The result of an unfocused and piecemeal approach is an upward spiral in employer-wide international business travel costs and expenses. In doing this, the posting needs to be tailored to meet the employer’s human resources needs while complying with legal mandates. This article will discuss the various ways a global mobility assignment can be structured.
Making arrangements for an international assignment can sometimes be difficult to structure, which is why it is important to understand the employee’s situation and the employer’s strategic needs. The employer needs to ascertain whether or not the employee will be classified as an expatriate, as this will guide him in putting in place the necessary structure. This is because not all international assignees are considered expatriates.
According to the Financial Times, an expatriate employee is an employee who is sent to live abroad for a defined period. An expatriate is expected to relocate abroad, with or without family, for as short a period as six months to a year. However, typical expatriate assignments are usually two to five years long. Expatriate postings and global mobility came about when organizations tapped an employee to go work abroad to either support a foreign affiliate, as a broadening assignment or to work overseas for the home country employer’s benefit.
Employers must utilize an organized and comprehensive approach to global mobility. Most organizations believe there is one way to structure all international assignments and, therefore, make the mistake of trying to structure all such arrangements using the same method. Resorting to this approach omits an important step of tailoring the cross-border posting to meet the employer’s human resources needs while complying with legal mandates. It is noteworthy to consider the specific situation at hand before determining the appropriate structure.
TYPES OF MOBILITY STRUCTURE
Expatriate structures take different forms but ultimately fit into or among four broad categories: Foreign correspondent, Secondee, Temporary Transferee, and Dual/Joint employee.
This is the type of arrangement whereby the foreign correspondent, who is the expatriate, remains employed and payrolled by the home country employer even while working abroad or rendering services from another location that is not the home country. In this instance, the expatriate is not rendering service to any host country entity or affiliate. It is easily a case of an employee working remotely from another country. This type is easy to set up because the terms of employment between the expatriate and the home country are maintained except for the place of employment. However, this arrangement needs to be properly structured as there is a potential risk of violating immigration and payroll laws.
The expatriate may, in most cases, require a visa sponsored by some host country employer. Again, the payroll laws of some host countries may require the home country employer to make reporting, deductions, withholdings, and contributions to host country tax and social security agencies which may prove to be a financial burden to the home country. Nevertheless, a tool can be used to resolve this issue. This tool is known as the “shadow payroll”. This tool allows the home country employer to enter into an arrangement with a host country entity to report the expatriate’s income to local tax and social security authorities as if the host country were the payrolling employer. The home and host country will thereafter do an inter-company reconciliation of each payroll period, with the employer paying for the shadow payroll service.
SECONDMENT
An expatriate is considered to have been seconded when their employer is registered outside the country they have been seconded to. In this instance, such an employee is entrusted with a temporary assignment to be carried out in the host country, which is usually an affiliate or business partner of the employer. Secondment is a common practice among global entities and corporations having a presence in various jurisdictions through group entities. It is part of a global policy with the home country loaning their services temporarily, and upon cessation of the secondment, the employee is repatriated to the home country under a global repatriation policy.
Such secondment practice, depending on the business requirements of the host country, usually involves the deployment of highly skilled employees of the home country well-versed with the workings of the overseas country, which can be effectively implemented in the host country’s operations. For instance, Mr. A, who is currently working for XYZ Limited in the United States, is posted to an affiliate of XYZ Limited in Germany to carry out a temporary assignment for a particular period. XYZ Limited in the United States is the home company, while the affiliate in Germany becomes the host country.
Usually, the employment contract between seconded employees and their original, foreign-based employer continues during the secondment period. They receive instructions from their original employer, who has the authority to monitor their performance or sanction their shortcomings. While the expatriate is under the control of the host country entity, they are still placed on the payroll of the home country for social security entitlements in the home country. The host country may also decide to payroll the expatriate, or both the home and host country can split it. This is called a split payroll.
TEMPORARY TRANSFEREE
This arrangement allows the expatriate to resign from the home country entity and move abroad to a host country entity which is usually an affiliate or joint venture partner of the home country entity. The expatriate only renders services to the host country employer and does not retain the privity of employment contract with the home country employer during the pendency of the employment. However, an informal letter or email may outline the post-assignment repatriation expectations. This arrangement is temporary as the expatriate expects to repatriate at the end of the assignment and re-localize back to the original home country location. It is also noteworthy that the host country entity pays the expatriate.
DUAL/JOINT EMPLOYEE
This is an expatriate that is simultaneously employed by two employers, the home country entity and the host country entity. Unlike the temporary transferee, the dual employee does not resign from the home country entity. He simply retains an “on leave” status while actively working for the host country entity. This means that his employment with the home country entity is temporarily suspended. The split payroll tool may be utilized with a dual employee, or the home country entity may decide to use the shadow payroll tool.
This arrangement can be structured overtly and sometimes even accidentally. It may be structured accidentally where the expatriate was merely supposed to be seconded to the host country entity, but somehow, the expatriate enters into an employment relationship with the host country entity, and the home country entity fails to terminate the relationship. This situation can be tricky as the dual employee could seek reinstatement or severance pay from the home or host country employer.
CONCLUSION
There are different ways global mobility and expatriate assignment can be structured, and it is not a “one size fits all” method. When considering mobility for an employee, it is vital to determine the form this mobility will take depending on certain factors such as immigration laws, payroll laws, employment laws, and tax implications. We have been able to explain that not all employees assigned abroad would qualify as an expatriate. Employers need to first determine whether the employee to be assigned would be classified as an expatriate, as that would help with the proper structure the assignment should take. Identifying the appropriate structure that would suit the business needs while also complying with legal requirements. This structure should also be properly documented to reflect the selected structure. Ultimately, the right structure would help employers avoid any potential legal ramifications that may arise.
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Written by Anyanwu Chiamaka for The Trusted Advisors
Email us: info@cms.trustedadvisorslaw.com