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I'm in the process of negotiating a move from a UK subsidiary to US head office, based in Pennsylvania.

An element of my potential new employment that concerns me, is that it is 'at-will'. This is not something that I'm familiar with - I am used to the protections provided by UK Employment Law.

My visa would be tied to being employed by this specific company - I would have to leave the US if they chose to terminate my employment - potentially without the company covering the costs of my return to the UK.

First, would it be possible (in a legal sense) for my employer not to employ me at-will and what would I expect them to provide me to make that happen?

Second, is there a specific alternative I can bring to my employer to make this request reasonable and simple for them to enact?

David K
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Spaig87
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    Dropped the UK tag. You may want to rephrase this to something more specific as your actual question doesn't really match your title and your title reads like a list question. – Lilienthal Jul 15 '19 at 07:18
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    "I'm moving to Somalia but I really like my parental leave, how do I... " Good luck dude. Maybe it is possible. – Nathan Jul 15 '19 at 07:27
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    If your company is moving you and investing in you to this point, they will not simply toss you aside and move on to someone else easily. If it was easy to find someone to do what you're doing, they'd have gotten someone locally instead of importing you from the UK. It's not like the "at will" concept means you will be left hanging. Provide value and you will always have a job. – Keith Jul 15 '19 at 12:23
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    Keep in mind that the costs, and commitment, for an employer to sponsor your visa is significant. IME, employers don't enter this relationship lightly, or with the intent to just axe people at a moment's notice. Generally, (again IME) the opposite is true, employers only bother to sponsor people they really like. If they're just looking for warm bodies to fill seats and have no intention of commitment, it's much simpler and cheaper to just hire locals. – dwizum Jul 15 '19 at 13:56
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    Also consider health care, as there is no NHS and you may have no cover from the day an employer disposes of you. – Ian Jul 15 '19 at 14:28
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    @dwizum There's ample of examples of big companies hiring people on visas and then treating them vastly worse than the rest of their employees due to their vastly inferior negotiating bargain. At least in software engineering that's par for the course. The exception are specialists that are sought by the companies (say Intel hiring people for their research labs), but if your area of expertise is nothing out of the ordinary it's reasonable to be worried about this. – Voo Jul 15 '19 at 14:41
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    It would be worth clarifying which visa class your company is intending to apply for on your behalf. If it's an L (intracompany-transfer) type, then it's possible that you may still be covered by at least some UK employment laws. Highly recommend that you at the very least talk to an immigration attorney of your own (not the company's one) who can answer your questions and look out for your interests. I didn't (H visa), and some things came back to bite me later. – brhans Jul 15 '19 at 14:46
  • Will you be unionised there? – gerrit Jul 15 '19 at 15:42
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    We quit doing that other thing in 1861... though some states didn’t get the memo and we had to hand-deliver it. – Harper - Reinstate Monica Jul 15 '19 at 17:21
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    To echo what @Keith says, I've been employed on an "at will" basis for over 20 years. Maybe I provide value, or maybe I'm just less of a dirt bag than anyone else my company has been able to find. That said, being employed "at will" is not nearly as risky as it may sound. Show up on time and sober and you'll keep your job. – Michael J. Jul 15 '19 at 18:35
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    @Ian, the health care aspect really isn't one of any concern. Between Healthcare.gov and COBRA coverage (which allows you to continue your existing coverage from your employer), all you need to do is have some money set aside in case something like this happens. – mikeazo Jul 15 '19 at 20:16
  • Note that there are exemptions that vary by state. – Dennis Williamson Jul 15 '19 at 22:23
  • Bear in mind that negotiating a special employment arrangement might be prohibited by the terms of the visa (I'm guessing an L1) since these visas require Department of Labor certification to ensure that you're not "taking a job from an American". – Dancrumb Jul 16 '19 at 14:39

5 Answers5

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The primary (if not only) alternative to US employment law you will have access to is simply a written employment contract, which both the employer and employee sign and thus agree to be bound by.

These employment contracts are relatively common at higher-level positions, and are commonly used to define severance packages, minimum notice periods, the time length of employment, guaranteed pay and/or bonuses over a specified time period, etc.

The best way to approach having such a contract is to decide what you want in it, such as a mutually binding notice period (i.e., that unless some law has been broken both sides agree to give 1/2/3 months of notice or equivalent pay, etc.), minimum time length (agreement to employ no less than X months/years, with some penalty to be paid unless both sides agree, etc.), or whatever you find important to you.

You would basically say that, given the change in employment law and your dependence on a visa, you would like to request an employment contract with the following provisions, and then you list what you would like.

The company's willingness to negotiate is purely up to them, and in these kinds of contracts a lawyer will generally need to draft the official document, and you can put pretty much anything you want in it. "If I quit with less than 1 month of notice I promise to mow the CEO's lawn for 1 month," etc, whatever either of you want to put in there. A US lawyer for the company would almost inevitably be involved in the actual drafting and review of it before anyone at the company would sign it, so I can't say that it would be worth it for you to try to draft any legal document on your own.

Some companies, for some positions, do this all the time. On the other hand, the very design of work visas like the H1-B, H2-B, OPT, and L1 are intended to provide employees which are highly dependent on their employers's desire to hire them. The short notice and ability of employers to cancel their sponsorship for little to no reason is intended by the government to act as an axe hanging over the head of anyone holding them and so serve as motivation (and a boost to US corporate profits, of course).

However, not all companies have quite the same mentality as our nation's politicians and lobbyists. Decide what you would like, ask for a contract, and see how they respond. They can say no, at-will only, and you'll have to decide if you are still interested in the transfer. They can also decline any given contract item, or stuff the contract full of so many terrible clauses (including terms that wouldn't be legally enforceable anyway) that you'd be better off not having one at all, so make sure to read any such agreement in full! Consider having a lawyer looking at it as well, if you aren't comfortable with any of the provisions or legalese.

BrianH
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If you are used to UK employment law and are about to be employed by a US firm you are entering a very different world. The short summary of your new situation is that of the protections and benefits you are used to virtually none of them will exist. I strongly advise you to get an expert on your side (i.e. one not working for either the US or UK company).

As you understand, at will employment means the company can fire you at any time for virtually any reason without notice, compensation or explanation. It is absolutely the norm in the US.

You can of course negotiate your own contract, and if you can negotiate terms for how you might be dismissed that would override the at will default position. But not many employers want to negotiate such contracts. If the company wants you to make this move you have some leverage. If not you have pretty much none.

If you are concerned about this (which would be a reasonable concern) and the move is not intended to be permanent, then you might consider negotiating a deal where you technically stay employed by the UK main firm, but the US firm paid you. Any firing would then have to be done under British law.

DJClayworth
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The protections in the UK simply consist of a legal requirement that there be employment protections implicit in every employment contract. The absence of those protections in the US simply means that those protections are not implicit in every employment contract. This lack is no bar to having a contract in which they are explicit. That is, there is no legal bar to a contract having these provisions, although there is still the practical bar of getting the employer to agree to them. It's like renting a place without rent control: you are still free to ask the landlord to include a rent cap guarantee in the lease.

See https://www.phillyemploymentlawyer.com/can-you-be-fired-at-will-in-pennsylvania/

Also, an employer cannot fire an employee if doing so violates the terms of an employment contract or other contract that sets the terms of the employment relationship.

and

An employer and employee may enter into a contract that provides conditions of employment that supersede the at-will doctrine. For example, an employment contract can provide that the employee may only be fired for cause or specify the duration of employment.

If you ask, as a condition of your move, for UK employment protections to be incorporated into your contract, and the company agrees, then the company will be contractually obligated to provide those protections.

However, there may be some issue as to what their obligations are interpreted to be: if they agree, for instance, to a three month notice period, they may be able to get away with "buying you out" by giving you three months of severance in lieu of employment, in which case although you wouldn't be out the income, you may not be considered "employed" for immigration purposes.

Acccumulation
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To add to the other answers, let's take a look at the situation where the American subsidiary refuses to agree to any sort of special contract other than at-will employment. In this scenario you should weigh the pros and cons of being in a relatively risky position:

  • How much the company will pay for relocation? Will it completely cover your expenses?
  • How bigger would your total yearly compensation be after tax? Given the lower taxes and higher salaries, you could easily be earning twice as much as in the UK.
  • Is your company well known for firing people on the spot? A lot of companies would give you some sort of a probation period as a gesture of good will, so that you have time to find a new job.
  • How much will you spend on moving back to the UK if you do lose your job?
  • Will your company sponsor you for a Green Card and if so, after what time period?

Using the information above, make a spreadsheet and calculate the break-even point for your relocation. If it's less than 6 months, moving to the States would be an absolute no-brainer.

Remember that state-enforced protections are mostly relevant for people earning less than the median wage, so you don't really need them as a highly-skilled person. The American system is incredibly cruel towards low-income employees, but at the same time incredibly rewarding for those in the highest income brackets.

JonathanReez
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Instead of negotiating a contract with all these things, I recommend that you negotiate a signing bonus. In effect, they pay severance, repatriation, etc. up front.

I recommend that you think about "What would 'Evil Corporation' do?" with respect to contracts.

Evil would negotiate a contract with you that included generous severance terms, guaranteed repatriation, etc. Then the very second you are no longer useful to Evil, Evil would fire you and make you a settlement offer significantly less than contractually obligated. What are you going to do, pay a lawyer and significant travel expenses to sue Evil?

You know that just after your plane takes off Heathrow for your big day in court, Evil's lawyers will file for a continuance making your trip to the US pointless. They will keep on filing last minute continuance and other abuses until you just accept their settlement offer.

emory
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    If you started with the last sentence, and changed "Trump" to "Evil Corporation", you might get some upvotes, because your advice is solid. – Peter M. - stands for Monica Aug 05 '19 at 23:10
  • As it stands right now, I'd say this is, if possible to apply, the best of the answers – David Aug 06 '19 at 13:21
  • @David we can not know what is possible. If the employer wants OP enough, then it is easy. If OP wants the employer enough, then it is not necessary. – emory Aug 06 '19 at 16:47