In an earlier blog we talked about the implications of the Trek Leather case and why employees—from those who take care of restricted/denied party screening to those who have the final say on their products’ ECCN/USML classifications—are now at personal risk when it comes to export compliance violations.
These days, the million dollar fine for an illegal export may not automatically be solely the responsibility of “the company”, but rather the responsibility of the front-line compliance workers who let the export happen. With thanks to attorney Stephen Wagner (of Fuerst Ittleman David & Joseph, PL.) for his 2015 webinar on personal liability, here are four ways to avoid being penalized for someone else’s compliance mistake.
1.Maintain a Strong Export Compliance Program
The President of Trek Leather learned the hard way that his compliance program was lacking. A strong export compliance program isn’t a dusty binder sitting on a shelf at Head Office—it’s a living, breathing part of company culture. It’s up-to-date, it’s evolving, and it’s regularly audited internally to be sure it’s working. It’s an environment where employees are aware, engaged and always learning. If your company doesn’t look like this, you could be at risk.
In the event of an export compliance “oops,” the legal and financial consequences can be significantly mitigated if it’s clear to authorities that the company has a proven track record of due diligence. An investigation that unearths that dusty binder and employees who’ve never heard of restricted party screening won’t likely end as well, and as the next point illustrates, you could be the person left holding the bag.
2. Be Certain that Responsibilities are Clear and Documented
In some organizations, titles like “Export Compliance Manager” are casually appointed without clarity about what the title actually means. If Kate is the Export Compliance Manager but the CEO doesn’t allow her to have final authority over questionable transactions, whose fault is it in the event of an illegal export? Kate’s title implies that the buck stops with her, but what if her only job is to make sure the admin staff is completing their restricted party screening every day? If Kate’s responsibilities and the limits to her authority are not clear and precisely documented, she will be challenged to defend herself in the event of a violation and subsequent investigation.
3. Know the law
“Knowledge is power” isn’t just a cliché. In this case, your knowledge of current export regulations can protect you from personal liability. Knowing if your products require new controls, knowing if a new sanctions list impacts your customer base…it’s information you need under your belt, so that you can follow tip #4…
4. Be Vigilant. Be Willing to Report
If you understand the export controls and regulations that impact your business, you can help prevent compliance missteps from spiraling out of control. Know what’s going on in your organization and be prepared to report to superiors if something is amiss. Why? Because you could be held personally liable if you turn a blind eye to illegal exports, and it’s later proven that you knew what was happening. What starts as an innocent mistake—an unlicensed product being shipped to a known, trusted customer—can snowball into a series of violations. More of the same unlicensed products could be ordered by a new set of customers, who then re-export them to those on a sanctioned party list. The “just this once, no harm done” mentality could lead to dire consequences.
The concept of personal liability sounds scary but when it comes right down to it, protecting yourself is not so very different than a corporation protecting itself. An airtight compliance program and ongoing commitment to following it will help keep everyone out of trouble.
