Part three of our 'Flying against the headwinds' series looks at new joiners' on-boarding during a time of crisis.
1. What are some issues employers need to consider when on-boarding new joiners who cannot commence their employment due to an entry restriction?
Where countries impose entry restrictions and withhold working visas to persons of certain nationalities, new joiners may be kept from being on-boarded on time, or at all.
Obviously this poses many issues from a business standpoint – the company may be in desperate need of talent in that one location, the employee may have already commenced employment and is training in another jurisdiction but are waiting to be transferred to their usual working location, the employee may just be physically stuck in one location with an inability to depart to attend work.
2. Can an employer terminate an employment contract of someone who has signed a contract but not joined their organisation?
Before any decision to terminate an employment contract or consider withdrawing an offer to a candidate, employers should first revisit the employment contract to see if it includes a conditions precedent requiring the employee to be able to actually attend work, or to have all necessary documentations ready to prove the employee’s eligibility to work in one single location. Otherwise the termination may be in breach of the employment contract.
3. What should an employer do if it wishes to retain the new joiner despite an entry restriction?
Where employers wish to retain new joiners, but they are unable to commence their employment (for example, there are delays in establishing a local employing entity or delays in obtaining work passes), the employers may turn to other alternative arrangements. This may be to have an employee working out of a different jurisdiction or engaging the new joiners temporarily in a different capacity, for example as an independent contractor or consultant.
4. Could there be consequences for the employer when changing an employee's capacity in order for them to commence work?
Employers should bear in mind that the labelling of a person’s title is not determinative as to whether an employment relationship actually exists. Some jurisdictions (like China) may not recognise the concept of an independent contractor, and placing an individual on a contractor arrangement may inadvertently attract local labour rights, and a misclassification of employees comes with serious legal consequences. Some jurisdictions require the same work passes for independent contractors, so this goes back to whether the new joiners are permitted by law to perform services or employment duties in a jurisdiction where they are physically present. Moreover, this is also relevant when it comes to calculating the employees’ length of continuous employment and other benefits and entitlements.