Wednesday, November 09, 2011

US Contractors and Kuwait Residency Discussion

I commented on American Girl's blog post in reference to US Contractors in Kuwait and thought I would post my comment here as well.

I have a friend who works for a US company, "supposedly" with no Kuwait "presence".  He is only getting 2 weeks vacation per year - which is illegal as per Kuwait Labor Law -- but so is a 60 hour work week - will he get OT?  I mean, he "agreed" to it while in the US - why be a prima donna, right?  But wait... dude also has a Kuwait residency visa.  Uh oh!  That means that the company does indeed have a "presence" in Kuwait.  They have chosen to "partner" with a Kuwaiti company to provide sponsorship to their employees.  They have a legal partnership agreement and the employer's US employees reside in Kuwait in the local economy.

Get a copy of the Kuwait Residency Law.  Read it.

Anyone who has a Kuwaiti residency is bound by Kuwait law.  You reside in the country; you obey the laws of the country.  (On the flip side, it would be like sending Kuwaitis to the US and expecting them to abide by Kuwaiti and not US HR laws.  How long would that last?  Oh, but wait... the US enforces laws....)  The USG pays the bills to US contractors, but they have lots of contractors all over the world from different countries - and those contractors must abide by local laws.  There are lots of USG contractors in Kuwait - Kuwaiti companies working in the Kuwaiti economy.   ALL  employees under a Kuwaiti residency visa (RESIDE in Kuwait) are subject to Kuwait Labor Law.

If you move to another STATE in the US, you have to learn the State law.  Why is it that people move to a foreign country and don't know their rights - or challenge them?  Je ne get it pas.

Your offer letter from  your company IS your employment contract in Kuwait.  Anyone who has a Kuwait residency must have it through a Kuwaiti sponsor.  RETAIN COPIES all paperwork in Arabic that you sign (don't sign if they don't give you a copy).  (Would you sign anything else - anywhere else - if you didn't know what it was or know what it states?)   There is a paper in Arabic ("ethayn al amel" - work permit) that you will be asked to sign to obtain your residency that goes to the Ministry of Labor that lists all the information for your contract:  Job description, duration of contract, salary, sponsor, etc.  If you end up suing as an employee, it will be your evidence.  SAVE IT.  Save all paperwork your employer gives you relevant to your contract and pay.

Employing contract companies (defense contractors)  may be confused (or chose to be confused).

This is only an example and not true to my knowledge:  ASC and their employees were sponsored by Kuwaiti company,  HRK.  If ASC chose not to give an employee their entitlement of 30 days vacation, the employee could sue; but sue who?  Not ASC.  The employee would sue the party sponsoring them; HRK.  HRK would have to square it with ASC.

Kuwaiti Labor Law supersedes any other agreements you have signed and will choose whichever stipulation is the most advantageous TO THE EMPLOYEE.  ANY employee can file a complaint (through a lawyer or by themselves) at the Ministry of Social Affairs and Labor (in the area where the company/sponsor has a physical address).  (The Ministry of Social Affairs and Labor - also known as "Shaoun" - can also be a useful place to receive advice if you don't want to go to a lawyer, but be ready for a little confusion and running around.)   The company may receive a fine and may be punished by having their "file closed"; meaning that they are not able to obtain any additional visas for employees.

What an employer relates to employees (and HR managers) may be their interpretation of the law (and/or how they may "adjust" it) but if you do go to a lawyer, you will find that employers/employees are bound to the Kuwait Labor Law.  (You can also file a complaint with the US military.)  (No slight to HR managers, but) HR managers are paid employees of your employer and are often advised by their employers and their legal team.  They're not independent parties.  Lawyers are.

Please don't take my word for it.  God know's - I'm blonde and I'm not an attorney or HR professional.  Ask a lawyer - talk is cheap in Kuwait. :)  Most often, the lawyer will not ask you to pay for a consultation.  Chose a lawyer who is affiliated with a US firm and knows Kuwait Labor Law.  American Girl is correct that there are many listed on the US Embassy's website.

Now, an employee may have to sue in Kuwait, via a Kuwaiti lawyer, to obtain/challenge the rights, but they'll eventually get the entitlements.  If you don't want to stick around to see the case through, you can opt to sign a power of attorney with your lawyer and have your entitlement forwarded to you later (in another country).

Often, employees who "rock the boat" (also known as "challenge their employers on their legal rights") are conveniently whisked away via an airline ticket home.  You may not know the real deal of what happened to your colleague(s).  Do an online search of court cases against your potential new employer (and their sponsor).  Is there a pattern of similar behavior on the part of your employer?  Are they just "getting away with it" at employee expense?

And, for the love of God - find OUT who your sponsor is!   They are effectively your middle-man.   Who owns the company?  Are they ethical?  Are they providing the proper representation and/or advice to the company you work for in Kuwait?  How long does it take to get your residency visa?  30-90 days MAX.  Just because a sponsor is a "big company" doesn't mean that they're good.  It could just mean that they made their money being bad.


American Girl said...

Thank you so much for posting this here as well as commenting on my post. I think the more people who can be made aware of things taking place... the better.

Like you, I'm not a Lawyer or anyone who claims to be able to interpret the law -- but surely we've both seen and experienced many 'shady' things taking place.

I wanted to comment on one particular point you made and offer a bit of advice to contractors on this topic -- complaining can sometimes lead to a plane ticket home -- so very true. Of course that's never the reason for termination. An 'extensive investigation' takes place (which really means someone in HR reviewed your file after you've complained and deemed you a 'trouble maker'), then the bogus investigation (on some random violation of policy, ie. late for work) will be substantiated. I mean who hasn't been late for work every now and then? Then poof -- flight home! Of course the employee has the right to dispute resolution, but the allegations will still be substantiated -- since they were actually late for work. That being said, it's imperative to not only file complaints through your HR department, but also through an Attorney or as a 'whistle blower' as whistle blowers are protected by law. Once you're a 'whistle blower' ANY corrective action taken against you (for previous infractions) are considered retaliation. Just make sure you're not late for work anymore -- I hope that makes sense.

Another alternative, if you find yourself being investigated for some random thing AFTER filing a complaint, would be to have an Attorney send a letter to your employer simply requesting to view your employee files. Most companies have a policy in place which prevents employees from viewing their files -- yes, these are off-limits though it's YOUR file. However, with a letter from an Attorney (cost is generally less than $100), they are required by law to hand that file over (to the Lawyer). This action is generally enough to scare an employer into backing off of a bogus investigation which could result in termination.

OK, I've blah blah'ed enough over here. Hope that all makes sense. And again, DG, thank you so much for bringing this important topic to light.

Desert Girl said...

American Girl: Knowledge is powah, girlfraynd. :) Thank you always for your intelligent, insightful perspective.

Great advice!