United States lawsuits involving the law of Afghanistan are uncommon, but it is common for employees to bring suit based on work done abroad generally, and not just in that one country. A recent case, however, illustrates that while the United States may be a more convenient forum, even a class action may founder if the law of the host country provides for no relief.
In Allen v. Fluor Corp., Civil Action no. 3:16-CV-1219-D (N.D. Tex. June 15, 2017), the plaintiffs were United States citizens who worked for a contractor in Afghanistan that provided noncombat logistical services. Presumably, this is a euphemism for "not military." They contended that they worked overtime hours and were entitled to overtime pay based on Afghanistan's Labor Code, and sought to pursue their claims on a class-wide basis.
The defendant moved to dismiss based primarily on the argument that (1) the dispute raised a "political question" that was beyond the court's jurisdiction; and (2) the contractors were not covered by Afghan law because they were considered foreigners without the requisite work permits. The thrust of the first argument was that Afghanistan is a theater of war and courts should not interfere in matters that might increase costs or discourage contractors from accepting engagements. The court rejected this argument for a multitude of reasons, including that the contractor's work was unrelated to policy, political or military decisions.
As to Afghan law, the court understandably relied on translations of the Afghanistan Labor Code and related Afghani sources provided by the parties. After reviewing those materials and others, the court concluded that the Labor Code only applied to foreign workers who either had or later obtained Afghani work permits. Since the plaintiffs had not obtained such permits, they had no claim under Afghan law.
While the plaintiffs were likely disappointed by the result, at least the court addressed this fatal flaw by way of a motion to dismiss rather than after what almost certainly would have been difficult and expensive discovery. At the end of the day, their claims failed because they had no rights under the laws they relied upon, and no amount of discovery would have changed that fact.
The bottom line: Class actions arising in foreign countries may turn on difficult and fine points of the subject country's laws.
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