The Foreign Service Journal, January 2005

of State, like other foreign affairs agencies, applies our own country’s concept of the “commuting rule” to Mr. Kent’s circumstances on the darkened streets of Vladivostok. That is, in the United States it is gen- erally understood that an employer is responsible for an employee’s miscon- duct only if the lawsuit arises from the employee’s service to his employer while actually at work. This principle is generally not extended to the employee’s commut- ing to and fro, considered a personal endeavor. The irony is that conceding the principle of 24/7 duty (the “scope of employment”) would protect both the United States government and the FSO from a lawsuit in the United States, limiting the injured party to resort to compensation under the laws of his own country. Had the consulate properly placed Mr. Kent’s local insurance, that poli- cy would have been available to a claimant. Yet even in that circum- stance, unless the 24/7 rule is recog- nized, the claimant might be approached by an attorney suggest- ing a lawsuit in the United States, hoping to benefit from the largesse of a jury in this country. Given the logic of applying the principle of 24/7 duty to our situa- tion, one might be tempted to see budgetary motivations for the department’s insistence on applying the “commuter rule” in this case. Perhaps the department believes the rule shields it from having to pay overtime to Foreign Service special- ists and untenured officers working overseas. Or perhaps the U.S. gov- ernment fears that application of the 24/7 rule might subject it to claims for workers’ compensation by employees for injuries incurred in an accident occurring overseas, or might entitle FSOs to disability and death benefits in such cases. If any of those rationales do apply, they are poor excuses indeed for not protecting Douglas Kent and other FS personnel. Instead: • Given that the Department of State has presented the FSO to the foreign country as a diplomat enti- tled to the broadest diplomatic immunity, should not the depart- ment concede that scope of employ- ment should be co-extensive with diplomatic immunity? • Should Congress make more clear than do existing statutes that the scope of employment of FSOs 24 F O R E I G N S E R V I C E J O U R N A L / J A N U A R Y 2 0 0 5 F S K N O W - H O W u