U.S. Department of Justice Issues Employer Guidance on Avoiding Discrimination When Complying With Export Control Laws

A recent employer fact sheet from the U.S. Department of Justice’s (DOJ) Civil Rights Division highlights an area of exposure for employers related to document requests in connection with export compliance assessments.

Quick Hits

• The U.S. Department of Justice’s guidance aims to help employers avoid discrimination under the Immigration and Nationality Act when complying with export control laws.
• U.S. immigration law prohibits discriminatory employment practices based on national origin, immigration status, and citizenship.
• The fact sheet addresses employment-related decisions such as hiring, firing, and recruitment; Form I-9 documentation and storage; and employee training.

The Immigration and Nationality Act (INA) prohibits discrimination in employment practices (with regard to hiring, firing, or recruitment decisions, for example) based on national origin, immigration status, and citizenship. The law prohibits these discriminatory practices even as employers attempt to comply with federal statutes related to employee nationality, such as U.S. export control laws. These laws may require a license from a federal agency to share or release export-controlled items to employees who are not considered “U.S. persons” under the language of the INA, and they may require employers to request documentation related to nationality to determine whether a license is required to share the export-controlled items. To avoid discriminatory practices when complying with U.S. export control laws, DOJ recently published the following best practices.

When recruiting for positions with access to goods, technologies, or data subject to export controls:

• “Don’t state in job postings or … tell job applicants that export control regulations require applicants to have a specific citizenship, immigration status, or national origin.”
• Don’t use the International Traffic in Arms Regulations or the Export Administration Regulations as reasons to reject candidates with certain citizenships, immigration statuses, or national origins.
• “When discussing export control requirements with job candidates and current employees, make clear that U.S. persons include more than U.S. citizens.” (Emphasis in the original.)

When asking employees about U.S. immigration status to determine whether access to certain goods, technologies, or data may require a license from the U.S. Department of Commerce:

• “Only do export compliance assessment for those workers whose positions require working access with export-controlled items.”
• Let workers know they are providing documentation of their citizenship or immigration status to determine if a license is required to access controlled goods, technologies, or data.
• “Separate export compliance assessments from the Form I-9 process” to assure workers that they are not being asked to prove their citizenship or immigration status for Form I-9 purposes.
• “Don’t require workers to present Form I-9 documents that prove their U.S. citizenship [or] specific immigration status.” According to the fact sheet, employers must allow workers to present any valid documents from the Form I-9 Lists of Acceptable Documents.
• “Don’t mark the Form I-9 with notes or other information related to export control requirements.”

The fact sheet states that when employers store documents related to Form I-9 verifications and export control compliance, they should store copies of documents that are used as part of export compliance assessments separately from Form I-9 documents. The guidance further clarifies that “[i]f an employer attaches or stores export compliance assessment documents with the Form I-9, it may appear the employer asked workers for specific or more documentation, or limited their choice of documentation, during the Form I-9 process.”

Finally, the fact sheet reminds employers that they must train staff on separate compliance policies in the Form I-9 work verification and export control assessment processes.

The guidance outlines the following best practices related to training:

• Ensure that the individuals responsible for managing the hiring and onboarding processes “receive training on discrimination based on citizenship, immigration status, and national origin.”
• “Clearly explain in any applicable policies and trainings that the Form I-9 process is separate from export compliance assessment, and each has different procedures, purposes, and requirements.”

U.S. export control laws do not contain employment or hiring requirements. These laws require export control assessment processes that avoid discriminatory employment practices. The DOJ’s fact sheet suggests a bespoke assessment process that is separate from other compliance procedures such as Form I-9 work authorization verification. While it may seem more efficient to collect personal documents to serve both compliance requirements at once, the DOJ advises a separation of processes to avoid discrimination claims.

The DOJ fact sheet confirms that more information about export control laws can be found at the website of the U.S. Department of State’s Directorate of Defense Trade Controls.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments will provide updates on the Immigration blog as additional information becomes available.

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