Liability Versus Duty of Care

Employers fret plenty about their liability in case of illness or injury to employees, but that liability is pretty limited, at least for business travel within the U.S., thanks to workers compensation. Once travel managers realize that, they're free to worry less about liability and to concentrate more on duty of care.

Let's begin by distinguishing personal injury lawsuits from workers compensation claims. When the injured employee's regular place of employment is the U.S., employment-context personal injury claims involve state workers compensation. These systems invite injured employees to file state administrative claims for modest awards that are set by workers compensation injury "schedules." Generally, a workers compensation award is an exclusive remedy: Injured employees cannot sue their employers for personal injuries in uncapped civil jury trials demanding compensatory or punitive damages.

Every once in a while some injured employee tries to sue his employer by bringing a personal injury lawsuit in a civil or common pleas court, demanding a jury and an uncapped personal injury verdict, plus punitive damages, but the courts almost always dismiss these lawsuits as soon as the employer raises the ironclad affirmative defense of workers compensation exclusivity/immunity, known as the workers compensation bar. Some courts even write this defense right into their procedural rules.

The workers compensation exclusivity defense is virtually impregnable. It reaches most all American employees who get hurt, maimed or killed on the job, even tragic victims of crimes and terrorism like the Virginia Tech shootings and the Oklahoma City bombing. Take, for example, professional football players' recent claims that the National Football League exposed them to progressive brain injuries during their playing careers. The players have leveled these claims not at their immediate employers—their respective teams—but at the broader league. Claims against the individual teams would have gone nowhere because of the workers compensation bar.

When a U.S.-Based Employee Is Injured Overseas

When an injured employee's home country is the U.S., lay the groundwork for defense under American law. These employees almost always sue employers for personal injuries in American courts, where remedies, awards for damages and access to juries are the friendliest to claimants.

If the employer raises the workers compensation bar defense, expect the employee to take the position that because he got hurt abroad, the lawsuit lies beyond the reach of his home state's workers compensation system and hence beyond the reach of its exclusivity bar. That opens the door for a personal injury lawsuit. Yet, because the employee sued in American court, he or she is vulnerable; the employer can push back and insist that the workers compensation bar holds. Then, the legal question becomes: Does the workers compensation bar reach an American employee injured while working temporarily abroad?

There is a long line of cases on this issue. Sometimes employees get to sue for uncapped damages in a jury trial; sometimes they do not. Here are the three most likely protections for employers.

Assumption-of-the-risk waivers: These boilerplate waivers may lull organizations into a false sense of security. American courts are reluctant to enforce advance employee personal injury waivers because the employees are presumptively coerced, victims of weak bargaining power. Courts assume they never had a meaningful choice. A line of cases going back over a century tends to invalidate employee assumptions of risk. Some courts even a name the rule, the "employer/employee exception" to assumption of the risk. Indeed, if an employer invokes assumption-of-the-risk to block even a workers compensation-type award, the court might hold the company unconscionable.

Injured employees also could sidestep such waivers. Rather than building a personal injury case around the inherent dangers of the destination, an injured employee can allege intervening negligence or bad acts on the part of the employer. Consider a government contractor that sends security guards who signed assumption-of-the-risk waivers into a war zone and gives them guns, bulletproof vests and GPS locators. If they get killed anyway, their estates might allege the employer recklessly withheld armed backup and a quick evacuation. One overseas traveler who was kidnapped claimed the employer caused injuries by stubbornly hard-bargaining over the ransom.

Elections of remedies: Some states' worker compensation systems will cover employees on overseas trips for a month or so; others might not. A murkier scenario is a U.S.-based employee injured or killed on a longer overseas trip.  Strategic employers will ask: How can we structure a foreign assignment to give our employee all the benefit of the workers compensation to which he would be entitled if injured in the U.S. while retaining for ourselves the workers compensation bar?

The matter has been debated, but I contend that this should not be argued to be unconscionable: No employee deserves a bigger payout just because he was mugged on a business trip to Caracas or Johannesburg rather than on a business trip to Chicago or Detroit. No one deserves a bigger payout just because she caught Zika in Sao Paulo rather than in Miami.

"Supplementary" or "voluntary" workers compensation insurance pays a benefit mimicking U.S. state workers compensation awards. An employer can buy this insurance for an employee taking an international business trip, in exchange insisting that employee beneficiaries contractually elect the insurance benefit as their exclusive remedy for personal injuries. This arrangement extends to overseas travel the protections and payouts set up by state workers compensation systems. I argue that an attack on the fairness of election of remedies is an attack on the fairness of state-run workers compensation payout schedules, a challenge that is just too much.

Arbitration clauses: Employers also could have an overseas traveler sign a choice­of­forum clause selecting arbitration. Such clauses usually don't apply for state workers compensation proceedings, but they should for scenarios that fall outside the workers compensation bar. Arbitration might be an appropriately dispassionate forum for a personal injury claim compared to a jury trial.