Q: At some of the local and national meetings of corporate travel managers I have attended, speakers said that corporate employers have a legal duty to protect their employees while traveling abroad. For example, they claimed that the estates of employees killed in terrorist explosions could successfully sue the company that sent them into harm's way. I am somewhat skeptical that employers could be held liable in this way. First of all, wouldn't any injury be automatically covered by workers' compensation? Are the speakers just hyping the need for companies to pay for security services, or is this alleged legal duty for real? If the latter, what, exactly, is the corporation's legal duty to its traveling employee?
A: I have no doubt that some of the speakers who make these claims have a vested interest in scaring the corporate travel managers into retaining them or subscribing to their security services. The articles authored by security consultants and law firms fail to cite a single relevant court precedent in the U.S.
The main reason for the absence of legal guidance is that these kinds of cases are generally covered by no-fault workers' compensation programs, which by definition do not result in useful precedents for guidance. As the U.S. Court of Appeals in the District of Columbia noted in Khan v. Parsons Global Services Ltd.: "Those cases where workers' compensation coverage was found involved employees who were required to travel away from the employer's premises for a brief period, or who engaged in continuous travel because of the demands of their job."
So, if a corporation sends its employee away from home on a business trip or series of trips, workers' comp would cover any injuries or death. However, there are exceptions to workers' comp jurisdiction.
In the Khan case, the court held that the workers' comp system would not apply where the employee had permanently relocated abroad to start in a new position and where a kidnapping occurred on a non-workday after a nonbusiness meal. Therefore, the court held that Mr. Khan could go to trial on his claim for negligence and emotional distress arising out of the employer's delay in paying ransom to his kidnappers, who tortured him because of the delay.
Workers' comp does not cover other situations, either. For example, some states exclude injuries that occur outside the state, injuries to executive officers or claims of third parties such as spouses.
Nevertheless, my research does not yet reveal a single relevant court precedent under state or federal law. Therefore, I do not believe that it is an accurate statement of the law in the U.S. today to assert that employers have a legal duty to protect their employees while traveling abroad.
Although I can find no precedents holding corporations liable for negligence that results in injuries to employees traveling abroad, employers do have long-established, broad legal duties of care to employees to maintain a safe working environment, such as a duty to keep emergency exit doors in working condition in case of fire.
So, I have no doubt that an injured employee whose claim was not subject to workers' comp will eventually create a court precedent requiring employers to take reasonable measures to keep employees safe while abroad.
Mark Pestronk is a Washington-based lawyer specializing in travel law. To submit a question for Legal Briefs, email him at [email protected].