by Rachel Ravary
McCarthy Tetrault
No one can deny that security concerns have taken on monumental proportions in the post-9/11 era. Buzzwords like national security, homeland security, border security, supply chain security, perimeter security, and security threats have become part of our daily vocabulary. National security is also high on the list of priorities of our respective lawmakers.
In the past several years, the U.S. State Department has become increasingly strict in its enforcement of export and transportation controls, most importantly the International Traffic in Arms Regulations (ITAR).
Unfortunately, these controls are often at odds with Canadian employment laws especially those dealing with privacy and human rights – leaving companies whose business depends in whole or in part on trade in ITAR-controlled materials between a rock and a hard place.
What are the issues? Could you be exposed? What is being done to resolve them? How can you limit your risks in the meantime? Those are some of the questions that this week’s blog will address.
Q. What are the ITAR?
A. The ITAR were adopted under the U.S. Arms Export Control Act, which essentially regulates the export of U.S. defense articles and services. Among other things, the ITAR impose strict licensing requirements before any non-U.S. person or company can come into contact with ITAR-controlled materials.
To be granted a license, the person or company must guarantee that no citizen of any one of the 25 “embargoed countries” will be permitted access to or contact with ITAR-controlled materials. This includes individuals who are Canadian citizens but who hold dual nationality with an embargoed country.
Companies who violate the ITAR by failing to restrict access to unauthorized individuals expose themselves to hefty fines, not to mention contractual liability and the resulting damage to their business.
Q. Who must comply with the ITAR?
A. Don’t be misled by the title – the ITAR have a far wider reach than military arms dealers. By definition, the restrictions apply to any company involved in the export or import of U.S. defense-related articles and services. This obviously includes such things as firearms and military equipment, but it also extends to less likely suspects such as protective personal equipment, training manuals and materials, fire control equipment, radiological devices, air and spacecraft, to name a few.
As well, the regulations cover any components, parts, accessories, and technical data used in those articles and any related services, for example, training, design, assembly, testing, repair, and maintenance. To date, the aerospace, transportation, and telecommunications industries seem most affected.
Q. Why should we be concerned by the ITAR?
A. The ITAR controls clash with Canadian human rights laws, which generally prevent an employer from discriminating against an employee on the basis of nationality or country of origin. As well, compliance with ITAR raises issues of infringement of privacy to the extent that employers will have to ask about their employees’ national origins, whether they still hold citizenship in those countries, etc.
Finally, complying with ITAR could put some employers in direct conflict with their employment equity or affirmative action obligations.
Q. Is it possible to comply with ITAR without violating Canadian employment laws?
A. The ITAR have a lot of Canadian critics, and most of them seem to be saying, “No.” More revealing is the position of Canada’s Department of National Defence (DND), which has clearly said that compliance with ITAR restrictions would be inconsistent with the Canadian Charter of Rights and Freedoms and human rights legislation.
Q. How have the Canadian authorities responded?
A. To date, human rights complaints have been filed in Quebec, Ontario, and Manitoba by employees or former employees who were either fired, reassigned, or denied professional opportunities because of the application of ITAR restrictions. Without exception, the provincial human rights commissions have taken the firm position that the ITAR restrictions are discriminatory and violate human rights laws.
Presumably, fear of the larger implications has led all of these cases to be settled before hearing. As such, we don’t have the benefit of any decision on the merits of the issue – in particular whether the application of the ITAR rules could be viewed as a bona fide occupational requirement.
Q. What is being done to resolve the problem?
A. Talks between the Canadian Minister of Foreign Affairs, DND, and the U.S. State Department began in 2006 and have recently resulted in an agreement to allow DND personnel who are Canadian citizens, including dual nationals, to access ITAR-controlled materials on a need-to-know basis, subject to a minimum secret-level security clearance. Discussions are continuing to try to reach a similar arrangement for private Canadian businesses.
Q. What can you do in the meantime?
A. There are no easy answers to this one. While we wait for a politically negotiated arrangement to address the difficulties raised by the ITAR, the best advice we can offer is:
- Clearly identify the parts of your activities that are subject to the ITAR and the affected employees as narrowly as possible.
- Ensure that your U.S. parent or U.S. business partners are aware of the challenges that the ITAR pose with respect to Canadian employees.
- To the extent possible, offer employees work on projects that are subject to the ITAR on a voluntary basis, specifying that ITAR compliance is a condition of the assignment.
- Specifying ITAR compliance as a job requirement at the recruitment stage may discourage some candidates who don’t meet the requirements from applying. However, because human rights and privacy laws generally prohibit you from asking an applicant about national origin, and discrimination protections typically apply to the hiring stage, this approach has its limits.
- Avoid at all costs firing, demoting, or otherwise compromising the professional advancement of an employee as a result of ITAR constraints.
- If problematic situations arise, deal with them on a case-by-case basis, and attempt to resolve them in a way that is satisfactory to the affected employee.