Tips to Avoid Discrimination When Hiring for Export Controls Jobs

If you’re hiring for a position that will have access to export-controlled technology or will require a security clearance, you may be tempted to restrict the job description or screen applicants based on nationality or citizenship. However, in many cases, those companies run into compliance problems with anti-discrimination laws very quickly.

The balance between compliance with export controls and anti-discrimination law is delicate. Both areas are highly regulated by the federal government, but there was a lack of clear government guidance for a long time.

The Department of Justice published new guidance in April. Following the points below likely will allow hiring departments to reduce some of the risk inherent in hiring practices and export controls.

Job advertisements. Don’t state in job advertisements or tell job applicants that export control regulations require applicants to have a specific citizenship, immigration status, or national origin.

Prematurely limiting applicants. Don’t use the International Traffic in Arms Regulations or Export Administration Regulations as a reason to limit jobs to candidates with certain citizenships, immigration statuses, or national origins. For example, don’t limit jobs to US citizens because the job involves accessing export-controlled items.

US persons. When discussing export control requirements with job candidates and current employees, make it clear that US persons include more than US citizens—US persons include US citizens, US nationals, lawful permanent residents, refugees, and asylees.

Company exports versus individual access to controlled technology. Just because your company conducts exports, it doesn’t mean that every job needs export licenses. Conduct an export compliance assessment on candidates for those positions that require working with export-controlled items, but you don’t need to do it for all candidates for all jobs.

Explain the need for special documentation. If you ask candidates whose positions require working with export-controlled items to provide documentation of their citizenship or immigration status, let them know you’re doing so to determine whether export authorization is required.

Separate from I-9 process. The export compliance assessment is separate from the Form I-9 process, which is solely related to work authorization and has nothing to do with export controls.

Candidates may decide to show the same documentation for each process, but separating the processes may limit the dangerous situation of a candidate believing they’re being asked to prove their citizenship or immigration status for the Form I-9 process. One can be fully work authorized and still require an export control license. Keep the I-9 separate from the human resources file containing an export control eligibility analysis.

I-9 documents. An employer shouldn’t require candidates to present Form I-9 documents that prove their US citizenship, specific immigration status, or show that they fall within the categories of workers who are US persons for export control purposes. Instead, allow workers to choose valid documentation to present from the Lists of Acceptable Documents—one from List A, or one from List B and List C.

Notes on I-9. Don’t mark the Form I-9 with notes or other information related to export control requirements.

Walling off. For export controls, DOJ expects the employer to do everything possible to accommodate a hire regardless of national origin, even when the position includes access to export-controlled information. This includes (when practical) walling off the person from access to the technology for a reasonable period of time until a license can be obtained.

Training. Make sure that the people who handle hiring and onboarding processes receive training on discrimination based on citizenship, immigration status, and national origin.

Policies. Clearly explain in your applicable policies and trainings that the Form I-9 process is separate from export compliance assessment, and each has different procedures, purposes, and requirements.

Government civil investigative demand. Many companies need help in this area including those involved in defense, semiconductors, satellites, computing, software, and various emerging technologies. This is a slippery slope, and it’s important to obtain experienced counsel for training, prevention, and other compliance advice. The DOJ Immigrant and Employee Rights Unit is aggressive in this area and will launch a big civil investigative demand, name, shame, fine, and monitor companies that accidentally slip on one of these banana peels.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Lisa Mays is an associate in Sheppard Mullin’s governmental practice and is lead associate of the firm’s transportation team.

Greg Berk is a partner with Sheppard Mullin’s labor and employment practice group. He leads the firm’s immigration practice.

Reid Whitten is the managing partner of Sheppard Mullin’s London office, practicing in international trade regulations and investigations.

Sheppard Mullin partner Scott Maberry contributed to this article.

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