Is Your HR Department Protecting the Company from Export-Control Penalties? Eric McClafferty and Brooke Ringel
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1 Is Your HR Department Protecting the Company from Export-Control Penalties? Eric McClafferty and Brooke Ringel This article was originally published in the July 2012 issue of Employment Relations Today Many HR departments can do a better job of protecting their companies from significant penalties and other risks by understanding and avoiding export-control violations. Of course, HR professionals have plenty to think about during the hiring process is the candidate qualified for the position; is he or she a good fit with the company; and what about salary and benefit requirements? HR professionals must also consider immigration and work visa issues when hiring a new employee is the candidate authorized to work in the United States, or does the company need to sponsor the individual s visa? In fact, HR professionals are seeing the number of foreign-born applicants steadily increase. 1 This is especially true in the science, technical, and complex manufacturing sectors, as more foreign-born candidates are trained in the United States and abroad, including India, China, and other Asian countries. 2 For a company that develops or produces products, technology, software, or services controlled for export (and many companies do), employing foreign persons can create exportlicensing and other regulatory concerns. Frankly, too few HR professionals are aware of export-licensing issues. Other laws, of which HR professionals are well aware, prohibit discrimination in hiring on the basis of citizenship and national origin. The intersection of these rules the export-control regulations that prohibit the unauthorized release of controlled technology to foreign persons, and the employment laws that dictate nondiscrimination in hiring is an area that all HR professionals should be prepared to negotiate with great care. OVERVIEW OF US EXPORT-CONTROL REGULATIONS The US Department of Commerce, Bureau of Industry and Security (BIS), and the US Department of State, Directorate of Defense Trade Controls (DDTC), are the two agencies primarily responsible for control of most goods and technology exports from the United States. Other agencies, such as the Department of Energy, the Nuclear Regulatory Commission, Department of Defense, Department of Treasury s Office of Foreign Assets Controls, and the US Patent and Trademark Office, regulate other specific types of exports. BIS administers the Export Administration Regulations, or EAR. The EAR covers dual-use products, software, and technology that can be used for dual commercial and military or terrorist end uses. 3 For example, a hammer is a dual-use item because it can be used for a standard commercial end use to hammer siding into a house, but it could also be used by the military to repair a tank. Items that require BIS authorization to export to a particular destination are maintained on the Commerce Control List (CCL). The EAR also controls exports to certain individuals or entities, and for certain end uses. DDTC administers the International Traffic in Arms Regulations, or ITAR, which controls military products ( defense articles ), software, and technology. 4 DDTC also maintains a list of controlled items called the US Munitions List (USML). A license from DDTC is required to export any USML item outside of the United States. In short, this alphabet soup of acronyms means that companies may very well be subject to regulations that control products or services for export.
2 Whether a company is involved in exporting products subject to the EAR or ITAR, and compliance with those regulations, is generally the bailiwick of the regulatory-compliance professional or department within the company. HR professionals, however, must be concerned with the technology (the information that describes how to develop, produce, or use those products) maintained by the company related to products controlled for export because of the deemed export rule prohibiting the unauthorized release of controlled technology to foreign persons in the United States. This rule states that if an export license is needed to send how-to information to a foreign person's home country, a license is required to release that how-to information to that foreign person working in the United States. This strikes some as strange, so let s give an example. Let s say your company makes a machine tool. Like many types of products, some machine tools need export licenses. So the information at your company that describes how to develop, how to make, and, in some cases, even how to use those licensable products needs an export license to be "released" (in any form) to certain foreign persons. This can clearly affect how you hire people and what they can work on once hired. UNDERSTANDING CONTROLLED TECHNOLOGY Digging a little deeper what exactly is controlled technology? As indicated, under the EAR, technology is the how-to information that is required for the development, production, or (in some cases) use of a controlled item listed on the CCL that is controlled for export. There are also some kinds of technology that are controlled even when the associated product is not controlled (e.g., certain coating technology). The specific definitions of development, production, and use can be found in part 772 of the EAR, but it is sufficient to know that those definitions are very broad and include virtually all information used in product development and production. It can exist in a similarly broad array of formats, including but not limited to, blueprints, drawings, calculations, machine-tool routing instructions and other machining data, productfinishing information, and testing procedures. Under military rules (the ITAR), technology, referred to as technical data, includes any information classified or not required for the design, development, production, manufacturing, assembly, operation, repair, testing, maintenance, or modification of defense articles. 5 Again, technology controlled by the EAR or ITAR requires a license for export to certain destinations just as the export of the product that the technology is used to design, make, or use. Tracking controlled technology can be quite challenging, as it encompasses both tangible forms of information (for example, technical drawings that can be secured under lock and key), and intangible information (for example, certain speech, calculations, or specifications known to a company s engineers). In both cases, it is easy to unwittingly share the technology in violation of the applicable regulations if one is not properly trained. Technology can be released to another person in any way: through a document attached to an or faxed, by showing the technology to another, or by orally transmitting information through a telephone call or in-person conversation. US export-control enforcement authorities take seriously controls on technology releases and vigorously enforce them. Think of it this way: one export of a controlled product like an optical sensor can be a violation of the regulations that permits an enemy of the United States to own and use that one sensitive product. But the release of sensitive production technology for a controlled optical sensor permits that enemy to manufacture an unlimited number of controlled optical sensors. For that reason, enforcement personnel often care more about technology exports than individual product exports.
3 THE DEEMED EXPORT RULE Based on these same policy considerations, the rules prohibit the unauthorized transfer of technology to foreign persons even if they are physically located in the United States. Again, this type of technology release is called a deemed export because it is deemed to be an export to the foreign recipient s home country. This means that foreign employees of a company must not be given access to controlled technology unless such releases are specifically permitted under the regulations or unless the proper license(s) are obtained. The key to complying with the deemed export rule is to consider what must be restricted for foreign employees: access to controlled technology. Access is extremely broad. Consider access to shared computer network drives where controlled technology is stored, SharePoint and other data-sharing programs, or websites where controlled technology is uploaded, access to meetings and production areas, and unsecured technology left out on a desk or in an unlocked cabinet. Permissible access to controlled technology for a foreign employee can come in several ways. First, foreign person is defined under the EAR and ITAR as any person who is not a US citizen, US permanent resident alien (Green Card holder), or protected individual under 8 U.S.C. 1324b(a)(3). Therefore, even if an employee is not a US citizen, the employee would be considered a US person if he or she qualified as a permanent resident or protected individual, and would lawfully be able to access controlled technology as such. Second, a foreign person may be able to access controlled technology based on the combination of the technology s type or level of control and the foreign person s home country. For example, a Canadian national would not require a license to access technology for the development of EARcontrolled optical sensors because of the specific levels of control that BIS has placed on that commodity and its related technology. In contrast, technical data for the design of any defense article controlled by the ITAR may never be released to a foreign person without a license. Finally, if a foreign employee is ineligible for access to EAR- or ITAR-controlled technology, the company may apply to the appropriate US government agency for a deemed export license. A lot depends on the specific export-control classification of products your company makes. You might be very surprised to learn that snorkel masks and fins, steel plate, ball bearings, generators, lubricants, some common chemicals, pumps and valves, computers, and hundreds of other types of products may need export licenses to be shipped from the United States. In some cases, companies need an export license before releasing the how-to information needed to make these products to certain foreign nationals. HR professionals who have submitted a Form I-129 Petition for a Nonimmigrant Worker in the past couple of years should be familiar with this rule. Section 6 of the form requires companies to certify that they have reviewed the export-control regulations and to indicate whether a license is required from either the Commerce Department or the State Department to release technology a prospective employee (beneficiary). If a license is required, the company must certify that the prospective employee will not have access to such technology until an appropriate license has been obtained. In summary, HR professionals must be very aware of how these export-control rules related to technology affect their companies. HR managers should work with regulatory-compliance professionals and experienced outside counsel to evaluate the following questions: 1. Does our company produce or otherwise handle products or software controlled for export? 2. What is the technology associated with those products or software?
4 3. Do we employ foreign persons who have access to that technology? Answering these questions can be a challenging process, but one that should be engaged in order to ensure the company s legal compliance. FOREIGN PERSONS AND HIRING DECISIONS An understandable reaction to the somewhat complex and burdensome regulatory requirements imposed by the deemed export rule is for companies with controlled products or technology to decide not to hire foreign persons at all. A primary responsibility of HR professionals, however, is to ensure nondiscrimination in hiring practices. The Immigration and Naturalization Act (INA) prohibits employment discrimination on the basis of national origin or citizenship status. 6 Title VII of the Civil Rights Act also prohibits employment discrimination on the basis of national origin. 7 Consider a situation where the individual selected for open position will require direct access to controlled technology in order to fulfill the job requirements. During the hiring process, export-compliance professionals within the company may be asking whether a candidate is a foreign person who will require a US government license for such access, while HR professionals are required to make certain that a candidate s nationality has no effect on the hiring decision. If the position does not require access to controlled technology, export-compliance professionals must make sure that a foreign person hired in that position cannot access controlled technology maintained by the company using IT access controls and other compliance tools. It is also imperative that HR professionals are familiar with the technology that may be released to new foreign person employees and whether that technology is controlled for purposes of completing Section 6 of the Form I-129 Petition for a Nonimmigrant Worker. Thus, the hiring process requires significant interaction between HR and export-compliance departments. From an export-compliance perspective, the key question is, when may the company ask about a candidate s citizenship status meaning whether the individual is considered a US or foreign person under the export-control regulations? From an HR perspective, the key question is, when may this information be obtained without violating the antidiscrimination rules that prohibit a candidate s citizenship or national origin from playing a part in that ultimate decision to hire? This is a very delicate balance to strike, and the process typically requires consultation with experienced export-compliance counsel. Even after a hiring decision is made, however, other provisions of the INA prohibit an employer from using the Form I-9 in making export-control determinations. Many companies and export compliance personnel don t know, for example, that an employer may not use the attestation portion of the Form I-9 for purposes other than enforcement of the INA or to support a related criminal prosecution. 8 Additionally, these laws prohibit document abuse, including the request for certain identification documents (e.g., a Green Card or passport) from an employee upon hiring, 9 resulting in the new hire presenting documents that may not demonstrate citizenship or permanent resident status (e.g., a driver s license). The solution is that HR professionals should process new hires by, in a sense, wearing two hats. Wearing the immigration hat, HR professionals should confirm that the new hire is authorized to work in the United States through completion of the Form I-9 or everify process. Then, wearing the export compliance hat, HR professionals should confirm the new hire s citizenship status to determine whether that individual can access controlled technology as a US person, or whether a license may be required. The results of the export-compliance verification may also be used to complete the Form I-129 Petition if required. The key takeaway is that verification of work authorization for employment purposes and verification of US or foreign-person status for EARor ITAR-compliance purposes must be separate and
5 distinct procedures. To accomplish this separation properly and avoid potential discrimination lawsuits and also work to avoid export penalties that can reach $1 million per occurrence (penalties have reached $100 million in a recent case), consult with export-compliance counsel who understand all aspects of these issues. (See ortviolations.htm for a listing of BIS penalty cases, which may show some in your industry.) OTHER POLICY AND PROCEDURE CONSIDERATIONS For HR professionals in a company with controlled technology, the best suggestion for complying with the rigors of antidiscrimination and export-control rules in the hiring process is to have clear written policies and procedures in place that are followed in practice. Below are some additional areas where these laws intersect that should be given careful thought. Advertising. The company should have established language used for advertising positions that require access to controlled technology. Job postings may not request US citizens only, except in certain circumstances, but can be drafted to indicate a deemed export license may be required. Pay attention to when a position requires access to classified data as well. License Applications. HR and export-compliance professionals within a company should jointly establish license-application procedures so that such application can be made at the earliest possible date. Deemed export license applications may take as few as three and as many as eight weeks (or longer) for approval, and approval is not guaranteed. Conditional Offers. Just as an employment offer should be made conditional upon authorization to work in the United States, in some cases, an offer may also be made conditional upon lawful access to controlled technology. Again, HR professionals should be aware of the particular requirements of the position at the start of the hiring process and should develop consistent offer language to this effect. Long-Term Monitoring and Record Keeping. HR professionals, working closely with their exportcompliance counterparts, should establish procedures to track controlled technology, access to such technology, and deemed export license expiration dates. After the start of employment, HR professionals may not re-verify a US citizen or permanent resident s citizenship status but should develop a system for reverifying the status of protected individuals other foreign-person employees with access to controlled technology. Technology Control Plan. Any company that produces or otherwise deals with controlled products, software, or technology should have in place a comprehensive export-compliance manual and technology-control plan that also deals with the issues described in this article. The policies and procedures set forth in these documents are the cornerstones of a strong export-compliance system. Having such a system in place demonstrates responsible corporate governance to not only the US export enforcement authorities who may visit your facility, but also to customers and the broader market. HR professionals have a duty to understand the way the export-control regulations may affect all aspects of their company, including the hiring process. This understanding is the first step in developing the policy and procedural tools to keep your hiring practices in good shape and to keep your company out of trouble.
6 Eric McClafferty is a partner in Kelley Drye & Warren LLP s Washington, D.C. office. His international trade practice includes extensive experience in export controls and compliance, and Foreign Corrupt Practices Act (FCPA) matters. He advises clients on export licensing and classification, performs due diligence export-compliance reviews, and establishes company- and product-specific compliance and training programs. Eric may be contacted at EMcClafferty@kelleydrye.com or visit Brooke Ringel is an associate in Kelley Drye & Warren LLP s Washington, D.C. office. She has experience in a variety of international trade matters, with a particular focus on export controls, classification, and compliance. Ms. Ringel has substantial experience in advising clients on deemed exports of controlled technology. She helps companies design compliance materials, including practical desktop checklists, for use in global export compliance and anticorruption programs. Prior to joining Kelley Drye, Ms. Ringel was a Special Assistant Attorney General for the District of Columbia litigating matters including employment-discrimination claims. Ms. Ringel may be contacted at BRingel@kelleydrye.com. 1 U.S. Bureau of Labor Statistics. (2011). Foreign-born workers: Labor force characteristics 2010 (USDL Publication No. USDL ). Washington, D.C. Foreign-born workers made up 15.8 percent of the US labor market in 2010, with the number of foreign workers increasing as the number of native-born workers decreased. 2 National Science Foundation. (2012). Science and engineering indicators 2012 (pp ). (NSB Publication No. NSB 12-01). Arlington, VA C.F.R. 730, et seq C.F.R. 120, et seq C.F.R U.S.C. 1324b(a) U.S.C. 2000e-2(a). 8 See 8 U.S.C. 1324a(b)(5). 9 See 8 U.S.C. 1324b(a)(6).
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