Canadian HR Reporter

CANADIAN HR REPORTER September 21, 2015 32 FEATURES Find these suppliers and more in the HR Vendors Guide – your source for human resources vendors, suppliers, consultants and professional development from across Canada. Visit www.hrreporter.com/hr-vendors-guide HR VENDORS GUIDE HR VENDORS GUIDE Are you looking for help with recruitment? Training and development? Recognition? Information on HR professional development and post- secondary programs? RELOCATION The ins and outs of NEXUS Membership has its privileges but missteps can be costly By Cyndee Todgham Cherniak T he NEXUS program is a cross-border, discretion- ary, regulatory program enforced in Canada by the Can- ada Border Services Agency (CBSA) and in the United States by the Department of Homeland Security, Customs and Bor- der Protection (CBP). Trusted travellers may be accepted into the NEXUS program after com- pleting an extensive application form, meeting eligibility criteria and undergoing security checks and an interview. NEXUS permits individuals to use alternative methods of re- porting, including automated NEXUS kiosks (in airports) or dedicated NEXUS lanes at land border crossings and a Travelers' Declaration Card (TDC) to report goods. A NEXUS member may also use dedicated lanes at airport security screening. While NEXUS membership is desirable for both employers and employees, there are some issues both should know about: No one is entitled to be accepted Since the NEXUS program is dis- cretionary, no person is entitled to be accepted into the program. The rules relating to eligibility are set out in the Presentation of Persons (2003) Regulations, SOR 2003/323, as amended. e Min- ister of Public Safety and Emer- gency Preparedness (Canada) and the U.S. Secretary of Homeland Security may reject any applica- tion for any reason. Given the discretionary na- ture of the program, member- ship should not be a condition of employment. Acceptance into the NEXUS program may not be within an employee's control. If the minister does not accept an individual into the program, there is a Canadian review pro- cedure. If an individual fails to obtain relief, a request for recon- sideration may be filed with the CBSA, Recourse Directorate as a level two redress procedure. If an individual fails to obtain level two relief, the only remaining option is to file an application for judicial review with the Federal Court of Canada. e judicial review litiga- tion process is expensive. Where an application is reject- ed and it appears from the reasons provided that information in an individual's customs file is incor- rect, it may be possible to correct the information in the file and then reapply. A previous border infraction (or criminal conviction or arrest) can be the basis for the rejection of a NEXUS application. If the in- formation is correct, but the rele- vance needs to be diminished, it is more difficult to clear the record. However, if an individual has maintained a clean customs re- cord for seven years after a minor infraction, it is possible to obtain a NEXUS authorization. Revoked memberships Once a person has been accept- ed into the NEXUS program, the minister (or a CBSA officer) should not revoke NEXUS autho- rization unless the individual has breached section 22 of the regula- tions or the rules of the NEXUS program. Section 22 of the regulations states the minister may suspend or cancel a NEXUS authorization if a person (a) no longer meets the re- quirements of the authorization; (b) has contravened the Customs Tariff, the Export and Import Per- mits Act or the Special Import Measures Act, or any regulations made under any of those acts or; (c) has provided information that was not true, accurate or complete for the purposes of obtaining an authorization. ere are also rules of the NEX- US program (such as all persons in a vehicle must have memberships if the driver uses the NEXUS lane and not using NEXUS if commer- cial goods are to be declared). at being said, a person may have a disagreement with a CBSA officer and the officer may ex- ercise his discretion to cancel a membership. If the person be- lieves the officer does not have a legal basis for cancelling a NEXUS authorization, the person may file an appeal with the CBSA NEXUS Program Redress Committee. Caution is necessary Any employee who uses the NEX- US membership in her employ- ment should make sure to comply with all border laws and the rules of the NEXUS program. It is up to the individual to know the law and comply. An employee could have her NEXUS authorization cancelled based on an inadvertent mistake. Further, when the CBSA cal- culates penalties for failure to de- clare, it will normally increase the level of penalties charged when an individual is a NEXUS program member. For example, a level one penalty of 25 per cent of the value of the goods may be increased to level two of 40 per cent of the value of the goods. e CBSA takes the position NEXUS travellers should not make mistakes. Whether an er- ror is unintentional is not consid- ered to be a relevant factor by the CBSA, which has a zero tolerance policy for NEXUS members. After membership is cancelled, an individual may be sent to sec- ondary CBSA inspection more frequently. Individuals complain about the extra screening more than any other consequence of NEXUS cancellation/revocation, including the inconvenience and wasted time in secondary CBSA inspection (which can take hours). Individuals who have commit- ted a border law contravention are flagged in the CBSA database for extra screening. e individual will not know when he will be se- lected by the CBSA for secondary inspection. is means an em- ployee with a black mark on her CBSA record may have to build in extra time when travelling for business purposes. e individual may have to in- form HR and others within busi- ness operations to build in extra travel time. is can mean paying more for an earlier flight or having to travel the night before. It may also be necessary to build in extra time where a connecting flight is required after cross-border travel. In other words, one mistake can affect a person's business life for up to six years (or more if a sub- sequent application of NEXUS program membership is rejected). Most employers want employ- ees to be trustworthy. "Trusted traveller" is a good label to be granted. If the CBSA does not think an individual is a trusted traveller, it may cause the em- ployer to question why. It's rare for an employer to try to use the cancellation of a NEXUS program membership as a basis for dismissal or demotion. If an employer requests an individual obtain NEXUS authorization as a condition of employment and the individual is under a six-year NEXUS program banishment, a difficult discussion may occur. Transporting commercial goods Individuals can also lose their personal NEXUS authorization when the employer in Canada has asked an employee to pick up commercial goods in the United States. The term "commercial goods" is defined in the Account- ing for Imported Goods and Pay- ment of Duties Regulations, SOR 2006/152, as amended, as "goods imported into Canada for sale or for any commercial, industrial, occupational, institutional or like uses." Goods for resale, samples, promotional materials, business computers, mobile phones, PDAs, et cetera may be considered to meet this definition. If the employee returns to Can- ada and attempts to report the commercial goods and the em- ployee contravenes a border law or a rule of the NEXUS program, she may lose her NEXUS autho- rization. Unless the employee is well-versed in border laws and customs clearance is within the person's job description, mistakes can be made. Should employees be asked to pick up commercial goods and risk their NEXUS program mem- bership for work activities? An employer could import the com- mercial goods using a customs broker and avoid NEXUS prob- lems at the individual employee level. It is foreseeable that if an employee loses his NEXUS privi- leges, he may make a grievance if the employee's family is no longer permitted to use the NEXUS- dedicated lanes when engaged in off-work activities. Cyndee Todgham Cherniak is the Toronto-based founder of LexSage Professional, a boutique international trade and sales tax law firm. For more information, visit www.lexsage.com. Credit: xiaolin zhang (Shutterstock)

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