Q: Remote Work - US based employee working <90 days in South Africa?
I work for a US based non-profit, my role is remote from California. I am hoping to work remotely from South Africa for less than 90 days. Before asking my employer I would like to know from a legal standpoint what considerations my employer & legal team will need to take into account while considering my request. Time zone and technical issues are being addressed, hoping for insight into the legal side.
From the SA side, it looks like remote work is allowed on tourist visa/visa exempt visit under 90 days and I won’t owe taxes unless I stay over 90 days 5 years in a row.
From the US side, are there implications for having an employee work remotely in an area we do not have an established presence (aka no offices on the continent)?
Anything else I should look in to or be aware of prior to asking my employer?
A:
When you work outside of California, the labor laws of that state or country applies to you. That means your employer would need to learn and comply with whatever those laws are. If that would involve substantial expense by getting a legal opinion about compliance, it might be a reason the employer would disallow your request.
The bottom line is that your employer has no legal duty to grant your request to work abroad. It will have to be a negotiated arrangement and you have little legal leverage to make it happen.
Good luck to you.
1 user found this answer helpful
A: I would note that your employer is still required to comply with United States and likely California anti-discrimination law. The Civil Rights Act of 1991 effectively overruled EEOC v. Arabian Oil Co., 499 U.S. 244 (1991), which held Title VII did not protect United States citizens working overseas in the absence of express legislative intent for extraterritorial application. Similarly, California's Fair Employment and Housing Act, should apply to discrimination claims, while you work temporarily out of state, if the underlying tortious conduct occurs in California. See Sims v. Worldpac Inc., 2013 WL 663277 at 3 (N.D. Cal. 2013). Finally, while there is a presumption against extraterritorial application of California labor law, there is a strong argument that California law would apply if the employer is based in California, deposits the money into your California bank account and your foreign work is temporary in nature and/or you moved into or out of the state based on false representations. Sullivan v. Oracle Corporation, 51 Cal.4th 1191 (2011); See Sims v. Worldpac Inc., 2013 WL 663277 at 3 (N.D. Cal. 2013); Labor Code 970, 972.
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