CUPA-HR Annual Conference & Expo 2012

1. CUPA-HR Annual Conference & Expo 2012 International Symposium “What You Need to Know When Launching a New Campus or Research Project in a New Country” Saturday, September 8, 20121:00 – 2:00 p.m. Donald C. Dowling, Jr.International Employment Law PartnerWhite & Case LLPNew York Cityddowling@whitecase.com

2. Roadmap • 5 Hypothetical Scenarios • What’s at Stake: Unwaivable Local Employment Law Compliance • Employment vs. Structural Issues • 4 Possible Services-Provider Structures • Classification Issues and Expatriate Issues • Questions—?

3. 5 Hypothetical Scenarios • New campus in China (Chinese and U.S. professors) • Joint venture degree program with Brazilian university (rotating in U.S. faculty) • 10-day annual study abroad program in Turkey (Turkish and U.S. instructors) • Full-time business development officer/recruiter in India (local Indian, or U.S. expatriate) • 18-month AIDS research project in Zimbabwe (3 U.S. and Indian graduate students + 2 local staff)

4. What’s at Stake:Unwaivable Local Employment Law Compliance Mandatory employment offerings • Written employment agreements or “statements of employment particulars” • Mandatory benefits/bonuses (social funds, Brazil FGTS, China/Mexico housing funds, agüinaldo/13th month pay, profit sharing) • Caps on hours; wage/hour laws • Mandatory vacation/holidays • Severance pay/notice: no employment-at-will outside U.S. • As to expats: visas Opt-out/choice-of-law clause rarely enforceable • No exception for university employees (contrast non-employee students); no local 501(c)(3) status unless/until affirmatively granted

5. Employment vs. Structured Issues • Employees vs. students vs. paid graduate students • Employment vs. institutional structure issues • Cf. China university rules and “All India Council for Technical Education’s Regulations for Entry and Operations of Foreign Universities in India Imparting Technical Education” • Structure issues triggered by employment • In-country employee triggering “permanent establishment” and tax filings (and no local 501(1)(3) status) • Payroll compliance requires taxpayer ID number—hence locally registered entity

6. 4 Possible Services Provider Structures • “All in”(local corporate registration; compliance with education laws; 501 (1)(3) equivalent; taxpayer ID number; payroll provider) • Independent contractor/consultant • Own company or unregistered • “Leased employee” (secondee) employed by another university (possible visa sponsor) or Manpower/Adecco/Kelly • “Under the radar” = non-compliance • 5 Possible Scenarios • New campus in China (Chinese and U.S. Professors) • Joint venture degree program with Brazilian university (rotating in U.S. faculty) • 10 day annual study abroad program in Turkey (Turkish and U.S. instructors) • Full-time business development officer/recruiter in India (local Indian, or U.S. expatriate) • 18 month AIDS research project in Zimbabwe (3 U.S. and Indian graduate students + 2 local staff) • Need for a visa

7. Classification Issues and Expatriate Issues • Classification: Overseas post-doc student, contractor/consultant, or de facto employee? • Expatriate, secondee, business traveler issues: (tab C) • Structuring expatriate postings (tab D) • Which country’s laws reach border-crossing employees? (tab E) • Employment-context choice of law clauses (tab F) • Expatriate checklist (tab G) • Duty to protect staff in overseas danger zones (tab H) • Severance releases and international employees (tab I) • Wage/hour law, international business travelers, and guest workers (tab J) • Expatriates, U.S. tax withholding, U.S. social security contributions—and COBRA (tab K)

8. Questions? Donald C. Dowling, Jr.International Employment Law PartnerWhite & Case LLPNew York Cityemail: ddowling@whitecase.com