Are "End of Service Gratuities" for U.S. Citizens and Foreign employees working in the UAE and several other Middle East Countries that mandate "End of Service Gratuities" allowable under U.S. Government contracts?
Answer: To answer this question there are a few assumptions that would need to be made to provide an opinion. They are –
- Assumed that the performance of the work is being performed in the UAE and covered by Article 51 of the UAE Labour Law. This is a benefit granted by the UAE Federal Law #8 to the expatriate workforce in the private sector. Several other Middle Eastern nations have similar laws. End of service gratuity is a statutory entitlement which employers must pay on termination of an employee’s employment. On termination, the employer must also cancel the departing employee’s UAE visa within 30 days of the termination date.
- End of service gratuity (ESOG) benefits for foreign employees working in the private sector will be as follows:
- The worker is entitled to a gratuity for the served fraction of a year, provided that he completes one year of continuous service.
- The end of service gratuity is calculated on basis of last wage which the employee was entitled to, namely the basic salary. Hence, it will not include allowances such as housing, conveyance, utilities, furniture etc.
- If the employee owes any money to the employer, the employer may deduct the amount from the employee's gratuity.
- All end of service entitlements must be paid within 14 days from the contract’s end date.
- The Gulf Cooperation Council (GCC), which consists of Bahrain, Kuwait, Oman, Qatar, Saudi Arabia and the UAE all have similar ESOG requirements. These efforts are to help expat workers that do not have any retirement system available to them.
- Assumed that the employees are being terminated, then this cost would be similar to providing a severance package (which is an allowed cost per Title 2, Subtitle A, Chapter II, Part 200 – Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, § 200.431)
(i) Severance pay.
(1) Severance pay, also commonly referred to as dismissal wages, is a payment in addition to regular salaries and wages, by non-Federal entities to workers whose employment is being terminated. Costs of severance pay are allowable only to the extent that in each case, it is required by
(ii) Employer-employee agreement;
(iii) Established policy that constitutes, in effect, an implied agreement on the non-Federal entity's part; or
(iv) Circumstances of the particular employment.
- Assumed the employee may not be considered to be receiving severance pay if they are not totally terminated from the company but are just reassigned to another job supporting the same company.
- Assumed that this is a cost reimbursable contract type.
- That the ESOG was listed on the contract as a billable CLIN or was included in the verbiage of the contract itself.
If these assumptions are correct then there is an opportunity for the ESOG to be a billable event in the countries listed above,
However, it is always necessary to work issues such as this with you cognizant legal office and the command policy section.