Between a rock and a hard place: nondiscrimination and export controls

Do you think export control laws take precedence over employment laws?  Think again.

Recently, two settlement agreements between the Department of Justice (DOJ) and U.S. companies highlight the complicated scenarios faced by many HR departments today.  Let’s take a closer look at General Motors and American CyberSystems Inc. More importantly, let’s find out what can be done to avoid these scenarios in your organization.

A tale of two companies

On April 18, DOJ settled with General Motors to “resolve the department’s determination that GM discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act (INA).”  The investigation revealed that GM’s violations stemmed in part from its failure to properly consider the INA’s nondiscrimination requirements when also complying with export control laws.

Specifically, GM will pay $365k in civil penalties.  According to Justice, the automaker unnecessarily required lawful permanent residents of the United States to provide unexpired foreign passports as a condition of employment.  The department determined that this requirement imposed a discriminatory barrier on workers during the hiring process.  Further, the department found that GM combined its worker eligibility determinations with its export compliance assessments – requiring non-U.S. citizens to provide unnecessary documents to prove their eligibility to work.

“Export control laws do not justify or authorize an employer to discriminate against non-U.S. citizens in violation of the Immigration and Nationality Act,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “When employers commit unlawful discrimination, the Civil Rights Division will continue holding them accountable.”

On May 17, DOJ also settled with American CyberSystems.  This company provides IT services and staff recruiting nationwide. The settlement “resolves the department’s determination that the company violated the Immigration and Nationality Act (INA) when it recruited for two positions using advertisements that unlawfully excluded certain applicants based on their citizenship statuses.”

American CyberSystems must also pay a civil penalty because of this settlement.  Further, the company will be required to train its recruiting and HR staff members on antidiscrimination laws, review existing policies, and be subject to future monitoring and reporting requirements.

“Employers cannot unlawfully discriminate against individuals based on their citizenship status when they advertise job opportunities, plain and simple,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “This settlement makes clear our commitment to holding employers accountable when they run afoul of the law and discriminate on the basis of citizenship.”

Fact vs. fiction:  new guidance for companies

To assist U.S. companies in navigating these complex considerations, the DOJ has provided a new fact sheet. This guidance is to help employers avoid citizenship status discrimination when complying with export control laws, which govern U.S. companies’ ability to export certain goods and software, technology, and technical data.

Here are some of the best practices in the fact sheet to help companies avoid discrimination charges:

• Don’t state in job advertisements or otherwise tell job applicants that export control regulations require applicants to have a specific citizenship, immigration status, or national origin.
• Don’t use the ITAR or the EAR as a reason to limit jobs to candidates with certain citizenships, immigration statuses, or national origins. (For example, don’t limit jobs to U.S. citizens because the job involves accessing export-controlled items).
• When discussing export control requirements with job candidates and current employees, make clear that U.S. persons include more than U.S. citizens.
• Only do export compliance assessments for those workers whose positions require working with export-controlled items.
• If you ask workers whose positions require working with export-controlled items to provide documentation of their citizenship or immigration status, let them know you are doing so to determine if export authorization is required. (Not for any other reasons.)
• Separate your company’s export compliance assessment from the Form I-9 process. Workers may decide to show the same documentation for each process, but separating the processes avoids a worker believing they are being asked to prove their citizenship or immigration status for the Form I-9 process.
• Don’t require workers to present Form I-9 documents that prove their U.S. citizenship, specific immigration status, or show that they fall within the categories of workers who are U.S. persons for export control purposes. Instead, allow workers to choose valid documentation to present from the Lists of Acceptable Documents.
• Don’t mark the Form I-9 with notes or other information related to export control requirements.
• If you copy documents as part of an export compliance assessment, store them separately from Forms I-9 and any I-9 attachment. If an employer attaches or stores export compliance assessment documents with the Form I-9, it may appear that the employer asked workers for specific or more documentation, or limited their choice of documentation, during the Form I-9 process.
• Make sure the people who handle hiring and onboarding processes receive training on discrimination based on citizenship, immigration status, and national origin.
• Clearly explain in any applicable policies and training that the Form I-9 process is separate from an export compliance assessment, and each has different procedures, purposes, and requirements.

What’s next for your HR group?

The fact sheet provides some helpful guidance.  In light of these recent cases, it’s also a good idea to:

1. Review your Export Management Compliance Program specific to Human Resources to ensure that these best practices are included.
2. Share this Fact Sheet with your HR team and include it with any training.
3. If sponsoring any visa’s, pay special attention to the completion of the export declaration on the I-129 Immigration Form.

Need help?  Schedule a no-charge consultation with one of our team members today.