Generally speaking, most embassies, international organizations, and many of their officials are not subject to employment-related administrative processes and cannot be sued in U.S. courts.  However, their immunity from the jurisdiction of local courts can be waived; therefore, in some cases, it is possible that these entities are fully subject to local laws and local courts. With respect to individuals, visa status is not determinative of privileges and immunities, of rank, or of amenability to local jurisdiction; it merely determines the basis for entry into the United States.

Note: If the employer has “privileges and immunities,” he or she is immune from U.S. jurisdiction for claims arising out of ordinary living expenses, including household employees.

Civil Servant:  An official who has the discretion to act on behalf of the employing entity.  Determined by a fact-based analysis.

Embassy:  The organization engaging in diplomatic representation of a foreign government to the Government of the United States. Includes consulates located in the Washington, D.C., area and usually special offices (trade offices, military liaisons, officially-sponsored tourist offices, etc.).

FSIA:  (Foreign Sovereigns Immunities Act, 22 USC § 1601 et seq.)  Law that incorporates the restrictive theory of sovereign immunity, essentially enabling U.S. citizens to sue foreign sovereigns for their commercial activities. Note specific service of process provisions at 28 U.S.C. § 1608.

Household/Domestic Employees: Individuals hired and paid by employees of embassies or international organizations (or their spouses) to work in the sponsoring individual’s home. These can include nannies, tutors, nursing attendants, cooks, cleaners and other household staff.

IO:  (International Organization) Public international organization.  An entity whose membership is made up exclusively of national governments (private entities and individuals cannot be members) and whose activities are governed by international instruments, such as treaties, which give them privileges and immunities in specific contexts.

Respected:  In the case of Embassy officials with privileges and immunities, the Vienna Convention on Diplomatic Relations provides in Article 41(1): “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State.” Generally individuals/entities who are immune from the jurisdiction of U.S. administrative and judicial authorities nonetheless have a duty and are expected to conform their conduct to the ordinary rules of the country in which they are stationed. A waiver of immunity can be granted by the appropriate authority of the sending state. However, the only real enforcement mechanism is for the host state to expel the individual as a “persona non grata.” This is a drastic remedy and can trigger, no matter what the merits of the individual’s conduct might be, retaliatory expulsions of U.S. personnel.

The following charts may be helpful in determining an international client’s possible avenues of recourse for employment-related issues.

The Client is employed by	Client’s Citizenship	Client’s Job Function	U.S. Laws Apply	US Ad-min Juris.	US Judicial Juris.	Other Avenues of Redress
Embassy	Sending state	Not relevant	No	No	No	Embassy internal process or in sending state
	U.S. citizen	Civil servant (i.e., has discretion to act on behalf of sending state)	Respected	No	No	As above, however redress less likely in sending state
		Not civil servant	Contract law	No	Only under FSIA	As above
	Third country	Civil servant	Respected	No	No	Embassy internal process;  potentially, in sending state or home state
		Not civil servant	Contract law (but choice of law issue, i.e., where formed)	No	Only under FSIA	Embassy internal process or where law of contract permits
International Organization	Not relevant	Not relevant	No, unless waived	No	FSIA if waived	Internal International Organization Process

Note: For serious abuse or human trafficking, the worker can call the 24-hour National Human Trafficking Resource Center Hotline at 1-888-373-7888. In case of an abusive situation, the domestic worker may qualify for a special visa to stay in the United States. Please see Immigration and Employment Chapter.

The Client is Employed By	Written Contract	U.S. Laws Apply	U.S. Admin and Court Jurisdiction	Other U.S. Redress[113]
Embassy Official or Spouse	Yes (Contract required as part of visa process for worker to enter United States)	Respected; contract will usually incorporate U.S. laws	No	Contact embassy admin w/ documented written complaint
International Organization Official or Spouse	Yes	Contract will usually incorporate U.S. laws; some laws may apply if the employer is not a civil servant	If employer is civil servant, then no; if the employer is not civil servant, this depends upon the particular language of the immunity instruments	Check International Organization to see whether Employee Rules of Conduct encompass conduct at issue and/or process for redress. If not, contact the organization’s personnel office to submit documented written complaint.
International Organization Official or Spouse	No[114]	If employer is civil servant, then no; if employer is not civil servant, depends upon the particular language of immunity instruments.	If employer is civil servant, then no; if employer is not civil servant, depends upon the particular language of immunity instruments.	See above.

[113] As a practical matter, exercising these options might endanger client’s position and ability to stay in the United States.

[114] Contract should have been required, which could cause problems for employer in obtaining future U.S. visas.

If the client was hired in the sending state and sent to the United States with diplomatic status, the client’s employing embassy is immune from U.S. jurisdiction and U.S. laws do not apply to embassy personnel decisions. See generally, Vienna Convention on Diplomatic Relations, Articles 22-40 (“Vienna Convention”). Depending on the law of the sending state, the worker may have a remedy there.

If the client was hired in the United States or a third country, it is necessary to examine his or her duties to see if she is a “civil servant.”  Generally, the worker will be a civil servant if she has the discretion to act on behalf of the sending state. If the worker is a civil servant, the employment transaction is immune from U.S. laws. See, e.g., El-Hadad v. United Arab Emirates, 216 F.3d 29, 34 (D.C. Cir. 2000) (“Whether the employee shall be considered a civil servant of the foreign state—and thus noncommercial—requires consideration of several factors to make this determination, e.g., the foreign government’s own laws defining civil servant and the employee’s job title and duties in relation to that definition.”).

If the client is a civil servant, although the employment relationship is immune from U.S. laws, there may be an internal embassy or Ministry of Foreign Affairs grievance process or internal dispute resolution mechanism available to the worker to resolve the dispute. If there is no known internal mechanism, the worker may draft a letter of complaint setting out the problem; what violations of the embassy’s employment contract or procedures are alleged; and what remedy is sought. If the matter has already been discussed with the immediate supervisor, then the letter should be addressed to the next supervisory level or, if none, to the embassy’s Secretary/Counselor/Minister for Administrative Affairs (which includes the embassy’s personnel office).

If the client is not a civil servant, then his or her employment will be a commercial transaction and the sending state is not immune from the application of U.S. laws.  However, enforcement of the law is difficult for several reasons. First, participation in the process of administrative agencies—EEOC or state/D.C. agencies—is completely voluntary, and embassies often will ignore or be irritated by attempts to involve them. See, e.g., Ellenbogen v. Embassy, Dist. Court, Dist. of Columbia CA No. 05-01553 (JDB) (2005).  Secondly, while embassies can be sued for commercial activities, service of process requires compliance with the elaborate provisions of the Foreign Sovereign Immunities Act.  See 28 U.S.C. § 1608.

As a first step, a worker may write a letter of complaint; however, the letter should not include references to specific legal action or cite specific laws.  Rather, broader language to the effect that the employee will “seek appropriate remedies under applicable law” should be used instead.

A public international organization (“IO”) is one whose membership is made up exclusively of national governments (private entities and individuals cannot be members) and whose activities are governed by international instruments, such as treaties, which give them privileges and immunities in specific contexts, e.g. World Bank, the International Monetary Fund, the Pan-American Health Organization.  Entities that operate internationally but have natural persons as members, such as the International Association of Chiefs of Police (IACP), are not IOs for this purpose.  Some, such as the International Federation of Red Cross-Red Crescent Societies or various Olympic organizations, are not IOs but may have some privileges and immunities in particular countries or at particular times (e.g., during the Olympic Games).

Employees of international organizations that have privileges and immunities are without a U.S. remedy.  U.S. courts will not generally intrude upon the internal workings of an international organization.  Broadbent v. Organization of Am. States, 628 F. 2d 27 (D.C. Cir, 1980).  However, IOs usually have “legal personality” and the ability to enter into ordinary contracts.  Courts will probably not find employment contracts to have waivers of immunity without explicit language.  See, e.g., Mendaro v. World Bank, 717 F. 2d 610 (D.C. Cir. 1983). Even U.S. citizen employees of IOs will not be able to take advantage of U.S. legal remedies.  See, e.g., Brzak v. United Nations, 597 F. 3d 107 (2010) (cert denied) (alleging sexual harassment).

Again, the worker may draft a letter of complaint setting out the problem, what violations of the IOs employment contract or procedures are alleged, and what remedy is sought. If the matter has already been discussed with the immediate supervisor, then the letter should be addressed to the next supervisory level or, if none, to the part of the IO that most nearly resembles a personnel office. The letter should do no more than request assistance in resolving the problem in order to avoid a premature election of remedies.

Workers employed as maids, nannies, housekeepers, personal drivers, personal nurses, caregivers or any other form of employment where the employer is not an embassy or an IO, but the employee of an embassy or IO, are distinct from officials who work directly for an embassy or IO.  While U.S. laws do apply to these workers, some or all of their employment relationships may not be covered.

Since at least 2008, domestic employees must have a contract in order to obtain a visa to enter the U.S.  A-3 visas are provided for domestic employees of embassy households, while employees of IO households obtain G-5 visas. The contract:

• must be in English and also in a language understood by the employee to ensure the employee understands his or her duties and rights regarding salary and working conditions; and
• must guarantee the employee will be compensated at the state or federal minimum or prevailing wage, whichever is greater. Any money deducted for food or lodging is limited to that which is considered “reasonable.”

The willful failure by an employer to comply with this requirement could result in the employer’s ineligibility to receive a visa under Section 212(a)(6)(B) of the Immigration and Nationality Act. See http://travel.state.gov/.

Under some circumstances, special visas may be available to aid the protection of domestic workers who are escaping abusive situations. Other than the potential visa relief, the rights and remedies available to the domestic employee depend upon the status of the employer.

Domestic Workers Employed in the Households of Embassy Officials

When an embassy official holds a diplomatic rank—e.g., under the Vienna Convention, either “a diplomatic agent” or a “member of the administrative and technical staff”—the official is immune from the jurisdiction of local laws and local courts with regard to his household employees. See Sabbithi v. Al Saleh 623 F. Supp. 2d 93 (D.C. Dist. Ct. 2009).  If the rank is unclear, it may be necessary to check with the State Department Office of Protocol; in general, if the embassy official has a diplomatic title, such as Deputy Chief of Mission, Minister, Counselor, Secretary, or Attaché, that individual almost certainly has diplomatic status of some kind (although, the lack of a title is not dispositive). In the rare instance of an embassy official who is a U.S. citizen or who has no diplomatic rank, he or she would be fully subject to U.S. laws and procedures.

If the conditions under which the worker is living or working rise to the level of serious abuse or human trafficking, the worker can call the National Hotline Human Trafficking Resource Center Hotline at 1-888-373-7888. This line is available 24 hours a day and serves as the central contact for locally available resources.

If the worker’s situation does not rise to that level of seriousness and there is an employment contract, the contract should be reviewed. As a first step, a demand letter should be prepared describing the ways in which the employer is not meeting the contractual obligations and the remedy desired.  The letter may be directed to the employing embassy official unless the worker feels that such communication will not lead to a resolution. In that case, the letter should be directed to the embassy official’s supervisor, with a copy to the embassy official, and it should include a time limit for the response.

If there is no employment contract, then the demand letter should note that the employer has an obligation to offer a fair wage and reasonable working conditions, state the deficiencies, and include a time limit for the response.

If there is no response or an inadequate response, a follow-up letter may be prepared that suggests possible involvement by the U.S. Department of State in resolving the matter. This assertion should be made carefully, because resorting to the State Department to resolve the workplace problem is a serious step with potentially far-reaching consequences for the organization by whom the employer is employed and the domestic worker as well. A follow-up demand letter should state the history of the problem and request the assistance of the Deputy Chief of Mission, “to avoid having to involve appropriate authorities,” which in turn might jeopardize the embassy’s ability to assure that all its employees remain eligible for the appropriate State Department visa process for personal and domestic employees.

Domestic Workers Employed in the Households of Officials of International Organizations

This is a complex area because the status of an official employed by an IO depends on what laws, treaties and executive orders govern the particular international organization and what privileges and immunities attach to the official’s particular job in that organization.

In order to determine whether a U.S. remedy exists, it is necessary to determine what privileges and immunities the client’s employer has. For example, an IO might have a bilateral treaty or agreement with the United States that gives specific and sometimes limited privileges and immunities to the IO and some of its employees (e.g., Headquarters Agreement with Organization of American States).  Most IOs will be covered by designation under the International Organization Immunities Act, which generally states that covered IOs have the same status as foreign governments and incorporates most of the privileges and immunities accorded to diplomatic missions and diplomatic agents under U.S. law, the Vienna Convention, and customary international law. See 22 U.S.C. § 288 et seq. In the absence of immunity, U.S. law and jurisdiction will apply.  If there is immunity, the only realistic recourse may be to attempt to pursue the claim or grievance through the IO’s internal processes. Many IOs, including the large ones in Washington, have employee manuals and internal processes by which the IO employee may be disciplined. This can provide leverage for the domestic worker seeking redress if the employer’s conduct (not having a written contract, failing to abide by that contract) violates a standard of conduct.

If the conditions under which the worker is living or working rise to the level of serious abuse or human trafficking, call the National Hotline Human Trafficking Resource Center Hotline at 1-888-373-7888. This line is available 24 hours a day and serves as the central contact for locally available resources.

However, if the worker’s safety is not threatened, an inquiry should be made as to the precise status of the employer and an appropriate strategy may be devised accordingly. If the worker’s situation does not rise to that level of seriousness and there is an employment contract, the contract should be reviewed. As a first step, a demand letter should be prepared describing the ways in which the employer is not meeting the contractual obligations and the remedy desired. The letter may be directed to the employing IO official unless the worker feels that such communication will not lead to a resolution.  In that case, the letter may be directed to the IO employee’s supervisor, if known, or to the Administrative or personnel office of the IO.

If there is no employment contract, then the demand letter should note that the employer has an obligation to offer a fair wage and reasonable working conditions, state the deficiencies, and include a time limit for the response.

If there is no response or an inadequate response, a follow-up letter may be prepared that suggests a possible involvement by the U.S. Department of State in resolving the matter. This assertion should be made carefully, because resorting to the State Department to resolve the workplace problem is a serious step with potentially far-reaching consequences for the organization by whom the employer is employed and the domestic worker as well. The follow-up demand letter should state the history of the problem and request the assistance of the Deputy Chief of Mission “to avoid having to involve appropriate authorities,” which in turn might jeopardize the embassy’s ability to assure that all its employees remain eligible for the appropriate State Department visa process for personal and domestic employees.