Mark Pestronk
Mark Pestronk

Q: A corporate client has asked us to explain how our agency can help the corporation meet its “duty of care” responsibilities toward its employees traveling abroad. I have been reading several trade-press articles on this subject, but none of them explains exactly what “duty of care” means. Do employers have a recognized legal duty or responsibility to keep their traveling employees safe? If a company fails to perform its duty, can it be held legally liable to an injured, kidnapped or killed employee?

A: Contrary to the conventional wisdom of travel industry consultants, corporate travel managers, human resources managers and safety-advisory providers, the law in the U.S. has not recognized any such legal duty. The law should recognize it, and someday it will surely do so, but we are not there yet.

Industry experts have been writing and advising about the duty of companies toward their traveling employees for several years. Travel Weekly’s sister publication, Business Travel News, mentioned the term “duty of care” no less than 13 times during 2014, reflecting its status as one of the more popular buzzwords that industry experts love to use.

However, there is no federal or state statute or regulation requiring companies to take any particular steps to protect traveling employees. Nor has any federal or state court precedent imposed such a requirement or awarded damages for a company’s failure to protect traveling employees.

Of course, the law is completely different for sellers of travel. There are ample precedents imposing duties on travel agencies and tour operators to investigate and warn about actual or potential dangers in appropriate cases, but those duties do not apply to buyers of travel such as corporations.

The law here contrasts with the legal requirements of other countries, where corporate duties of care are spelled out. For example, in Australia, under court precedents, employers have a duty of care to ensure that their employees who work or travel abroad are safe, even employees who are stationed abroad, and even if the employees are injured during nonwork periods. The laws even cover mental and emotional conditions encountered as a result of a foreign assignment.

In the U.K., under the Manslaughter Act, a company and its senior officers can be civilly or criminally charged if an injury that occurred in the foreign country was a result of breach of duty of care occurring in the U.K.

Let me be clear that I am not advocating that U.S. corporations ignore issues of health and safety abroad. As a matter of corporate policy, every company ought to take steps to educate and protect employees that it sends abroad, especially to less developed countries.

Travel agencies can provide various, useful tools to assist corporations in carrying out their policies. For example, every agency with an interfaced back-office system has access to programs that will produce a report on where all travelers are in case of an international incident.

Travel management companies are offering ever more useful tools that they develop on their own or sell on behalf of third-party information providers.

The trend toward adoption of duty-of-care tools is a very good one. It is too bad that the law has not yet caught up.

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