Tuesday, February 16, 2016

US Contractors – Your legal rights and the Kuwait Labour Law

A lawyer friend asked if I wanted to post the below on my blog.  Fer sure - because a lot of people don't know their rights.

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I am hearing more and more each day about the break time gossiping and moaning that surrounds the work contracts here in Kuwait.  Most of the gossiping is done by Denny Crane methodology;  Legal Eagles just cherry picking what they hear from one person and another,  then combining a mish mash of complete inaccurate information.  So, on that note I would like to just explain a few simple terms to you guys:

·      If you have a Visa 18 you fall under the Kuwait Labour Law of February 2010 – A copy is here for you to read.
·      The Kuwait Labour Law supersedes any work contracts that you have with your employer
·       If you decide to take Legal Action against your employer to recoup any overtime, indemnity or holiday pay outstanding you can sue your employer through the legal system in Kuwait without any retribution from them – once a case is filed you are protected. You must realise that your employer can not sack you because you are taking them to court – if they try, this works  in your favour and substantiates your claim even more.
·      You can file a case up to 1 year from leaving your employment – but this takes more time to process.
·      As an American citizen even signing a contract outside of Kuwait in advance to your arrival here – you are still bound by Kuwait laws.
·      You might want to check out the following site – this is the big buzz word in the US at the moment – Human Trafficking – yes guys – you come under Human Trafficking by your own employer – quote(5)(i) Using misleading or fraudulent practices during the recruitment of employees or offering of employment, such as failing to disclose, in a format and language accessible to the worker, basic information or making material misrepresentations during the recruitment of employees regarding the key terms and conditions of employment, including wages and fringe benefits, the location of work, the living conditions, housing and associated costs (if employer or agent provided or arranged), any significant costs to be charged to the employee, and, if applicable, the hazardous nature of the work;
(ii) Using recruiters that do not comply with local labor laws of the country in which the recruiting takes place;  https://www.acquisition.gov/sites/default/files/current/far/html/Subpart%2022_17.html

·         The Legal procedure here is simple and painless:

o   You find a good bi-lingual lawyer – please understand only Kuwaiti Lawyers can stand before the judge in Kuwait
o   You Sign Power of Attorney ( ‘Tawkeel’ in Arabic)– this enables your lawyer to act on your behalf – this can be done in about 30 minutes
o   You discus your issues – take all forms of paperwork including proof of any overtime sheets or payslips that you have
o   The lawyer will look over all the documentation and work out how much money is owed to you what you can claim back through the courts
o   You agree on a fee – this is usually around KWD 1,500 dependant also on complexity of the case and if you are leaving you must appreciate contact through international means (this might push the fee up to KWD 2,000) also, they will charge a recovery fee of around 7% - but, the monies collected on your behalf will be sent directly to you once received. Expensive ?  Yes and No – once your case is filed you need do nothing – the Lawyers will take over everything – and monitor every aspect of the case for the duration – considering most Lawyers have a normal flat rate of KWD 50 to open a file – and charge anywhere between KWD 150 – 300 per hour consultation – looking at this you will realise it’s a justifiable cost. Some may charge you less than this – but you have to question is the firm experienced enough and do they have native speaking English staff?  But, on the other hand if they try to charge you over KWD 2,000 you are paying waaaay too much.
o   Once in agreement to everything a contract is signed.

·         The legal process once you decide to peruse your case through the courts in Kuwait is quite simple:

o   Your file is presented to the Ministry of Social Affairs and Labour ( MOSAL - Sha’oon this is the local name) where it is registered and a case number is given.
o   Your file will be given to a Sha’oon Manager – he will be the one looking at all the evidence and collating the information from both sides to give his recommendations to court.
o   Your employer will have 3 chances to attend an informal hearing with him in the Sha’oon offices.
o    If your employer does not attend 3 times then the case gets automatically sent to the Civil Court.  In all honesty,  it’s a case of sit back and wait – usually takes about 6 months for it to get a hearing date – Kuwait Judicial system is paper driven and as we all know every man has his stamp !
o   If your employer does decide to turn up at either of the 3 appointments given to them by the Sha’oon  they have a right to present any documentation that they have – this can also give opportunity to settle out of court – they will be asked would they like to settle out of court – if this happens and they agree then terms and conditions will be set and an agreed amount will be negotiated and a payment date set out.  This will be legally binding !!!

o   Even if you decide you want to leave Kuwait during this process – your lawyer will fight on your behalf for your rights.  Just make sure you have a good lawyer that has your back !!!

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Their office number is 1810011 if you want to discuss it further.  The initial consultation is free.

Just to let y'alls know:  You can't go back to the US and fight it there.  There is no jurisdiction for the first round.  You have to file a case in Kuwait and based on that outcome, use the Kuwaiti case as evidence in your subsequent case filed in the US (if you choose to do that).  There was a recent class action case against an American contracting firm working in Kuwait where the plaintiffs filed in the US.  The US judge threw it out as the Kuwait Labor Law does not apply in the US.


Anonymous said...

I have a question that hopefully someone can answer:
My contract states that I have 30 working days paid vacation per year.
I have read many places where the vacation is described as paid working days leave.
with this in mind, my contract states that my official working days are from Saturday to Thursday, with Fridays and public holidays off.
if this is the case, if I take 30 straight days vacation in one month, there should be 4 Fridays.
I should then, in theory, have used only 26 working days which would give me a remaining 4 full working days paid vacation.
Am I right or do public holidays and Fridays get counted as vacation regardless of contracted hours?
please help


Desert Girl said...

Dear DD,

By Kuwait Labor Law, you are entitled to 30 working days of leave and not 30 calendar days because the rest days (Fridays) are not considered. So you will only be paid for 26 days if you take a consecutive month off.

If you are in doubt of any labor-related questions, you can always write to the Arab Times at arabtimes@arabtimesonline.com and they will publish your question and the answer. We do this once in a while to show our upper management. :)