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Hastings International and Comparative Law Review

Abstract

The increased presence of foreign-owned corporations operating under Friendship, Commerce and Navigation Treaties (FCN) and recent U.S. litigation involving these treaties has affected the employment of American citizens and foreign nationals in the United States. Sumitomo Shoji America, Inc. v. Avagliano and Korean Air Lines v. MacNamara focused attention on the importance of this issue. How U.S. courts interpret specific provisions of such treaties will have a significant impact on employment practices of some foreign-owned companies. This Article examines four U.S. laws-the Immigration and Naturalization, Fair Labor Standards, Age Discrimination in Employment, and Bankruptcy Acts; and -the International Labor Organization's classification of occupations-to assess the appropriate meaning of the terms "executive" and "engage" in the employment of American citizens and foreign nationals in light of recent cases. The Article concludes that the foreign owned firm's ability to make corporate decisions with regard to hiring, firing, and restructuring of the company is not incompatible with U.S. fair employment laws and the company's treaty right to hire persons of their choice for certain key positions.

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