DOJ Fines GM for Hiring 'Discrimination' in Efforts to Comply With Export Controls
DOJ this week announced a $365,000 settlement with General Motors over claims that the car maker -- in an attempt to comply with U.S. export control laws -- discriminated against non-U.S. citizens in violation of the Immigration and Nationality Act. The agency also released a fact sheet to help employers avoid citizenship status discrimination when seeking to comply with export control laws.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
GM “unnecessarily required” lawful permanent U.S. residents to provide an “unexpired foreign passport as a condition of employment, imposing a discriminatory barrier on them in the hiring process,” DOJ said. From at least July 2019 until May 2021, GM “improperly combined” this worker verification process with its export compliance assessment, “which resulted in GM unnecessarily requiring that newly hired non-U.S. citizens provide specific and unnecessary documents to prove their permission to work.”
As part of the settlement, GM agreed to train its employees on the INA’s requirements, revise its employment policies and face “departmental monitoring and reporting requirements.” The company also must separate the process it uses to verify work permissions from its export compliance assessment process, and “stop requiring lawful permanent residents to present foreign passports as a condition of employment,” DOJ said. Assistant Attorney General Kristen Clarke said export controls don’t “justify or authorize an employer to discriminate against non-U.S. citizens.”
GM is "proud of our diverse workforce of employees from all over the world, and we are committed to providing a workplace that is free of discrimination, including based on citizenship, immigration status, and national origin," spokesperson Maria Raynal said in an April 18 email. There was "no formal determination that GM engaged in discrimination, and we make no admission of wrongdoing," Raynal said, "but we welcome this resolution as an opportunity both to avoid litigation and to refine and clarify our internal administrative processes to further improve the employee experience."
Under the INA, employers are prohibited from “discriminating based on citizenship, immigration status or national origin during the hiring process, including by imposing unnecessary documentary demands as a condition of employment.” The law also blocks employers from asking for “more documents than necessary or specific documents when checking an employee’s permission to work because of citizenship, immigration status or national origin.”
In the fact sheet, the agency said companies should avoid stating in job advertisements or telling job applicants that “export control regulations require applicants to have a specific citizenship, immigration status, or national origin.” Companies also shouldn’t use the State Department’s International Traffic in Arms Regulations and the Commerce Department’s Export Administration Regulations “as a reason to limit jobs to candidates” with certain citizenships or national origins, and should make clear to candidates that “U.S. persons include more than U.S. citizens.”
DOJ said all "U.S. persons" -- including U.S. citizens, U.S. nationals, lawful permanent residents, refugees and asylees working at U.S. companies -- can access export-controlled items without a license. But employers may need authorization from a federal agency before they share those export-controlled items to workers who are not U.S. persons, the agency said.
“The ITAR and the EAR don’t contain employment or hiring requirements,” the fact sheet said. “So they don’t require employers or recruiters, including staffing agencies, to limit jobs or recruitment to U.S. citizens, or workers with other citizenship or immigration statuses.”
Raynal said GM "appreciates" that DOJ is "acknowledging and addressing the longstanding need for guidance to help well-intentioned employers navigate the tension between export control obligations on the one hand and employment eligibility verification compliance obligations on the other hand."