> In job postings and public statements over several years, SpaceX wrongly claimed that under federal regulations known as “export control laws,” SpaceX could hire only U.S. citizens and lawful permanent residents, sometimes referred to as “green card holders.” Export control laws impose no such hiring restrictions.
This is perhaps pedantically, but not practically correct. ITAR restrictions, for example, prohibit foreigners from using or testing night vision equipment (even on US soil). If a team is hiring a rocket engineer, and it's a violation of ITAR for them to see technical data on SpaceX's rocket program then it's effectively impossible for a non-US person to perform in this role. Perhaps SpaceX could have phrased things differently, like "this job requires access to ITAR-controlled technical material..."
Now, as to whether or not asylees are able to access ITAR restricted material seems a bit more complicated. Searching around the internet it seems that only some asylees are able to access ITAR material: https://exportcompliancesolutions.com/blog/2018/09/20/u-s-pe...
I thought that SpaceX, due to the nature of their work (rockets) were specifically prohibited from hiring non-citizens?
Edit: seems like the DOJ is claiming that that is not the case. Weird…so this is basically going to boil down to each side arguing their interpretation of a regulation.
Can’t say this doesn’t smell just a little political.
>Can’t say this doesn’t smell just a little political.
The President of the United States very publicly called for Musk and his companies to be investigated back in November of ‘22. Ironically, this was because of supposed relationships with other countries.
So he deserves investigation due to foreign business relationships, then gets sued for not hiring (edge-case) foreigners to build state of the art rocket technology. Cue the Curb Your Enthusiasm theme song.
I was wondering about that too. They are restricted from exporting the knowledge and are restricted (ITAR, EAR, FARS/DFARS, etc.) in some roles to use non-US citizens, and not even "lawful permanent residents" are allowed to take them. (Background 19 in DoJ filling) Export means sharing the information with non-US citizen or green card holder, irrelevant where the action takes place (i.e. the non-US recipient can be in Richmond, VA; it is the citizenship/green card that matters not the location).
It is possible that the roles identified by the DOJ are not under these restriction.
That said, how is this going to be resolved with the compliance requirements
Per the website linked, asylees and refugees do not come under the export control act, as opposed to citizens of other nations. The timing of the lawsuit does seem interesting though.
SpaceX is prohibited from hiring non-US-persons (for at least some roles.) US Persons includes all US citizens, and several other groups of people. It is also illegal to use the differences between types of US Persons in hiring decisions. The lawsuit is because SpaceX wrote US citizens instead of US Persons. They now list all categories of US Persons in their job listings (in response to this suit, most likely), so this is about past behavior and probably will be trivially settled for a fine.
There is also an active question of if the discrimination is still happening, in which case the governments goal is to prevent compliance only in the job listings.
No they shouldn't be discriminating based on citizenship. That unnecessarily limits their access to talent. There may be roles within SpaceX that require a security clearance and therefore require US citizenships, but the discrimination should be applied based on the role and not as a blanket company policy.
A friend with specific knowledge about these suits just informed me that these lawsuits are in fact incredibly common. Many large companies have multiple open audits with the feds at any given time over alleged discriminatory practices - in fact so many of them occur that there is a cap set for how many of them can be open at any given time. This is less political or specific than it appears at face value.
maybe I need to read this again more carefully but I fail to see what SpaceX is doing wrong here.
This:
> Because SpaceX works with certain goods, software, technology and technical data (referred to here as export-controlled items), SpaceX must comply with export control laws and regulations, including the International Traffic in Arms Regulations and the Export Administration Regulations. Under these regulations, asylees, refugees, lawful permanent residents, U.S. citizens and U.S. nationals working at U.S. companies can access export-controlled items without authorization from the U.S. government. Therefore, these laws do not require SpaceX to treat asylees and refugees differently than U.S. citizens or green card holders. Find more information here on how employers can avoid discrimination when complying with export control requirements.
Seems to be the issue.
But why would it be against the law for a US company to discriminate against someone without valid immigration status? I assume the issue here is a refugee has some authorization for lawful employment and SpaceX still doesn't want to hire them wholesale, hence the suit.
IMHO the United States' convoluted immigration and refugee policy is to blame. Why not triage everyone to being "legal permanent resident" and remove the distinction between refugee/asylee and other types of lawful residents? I'd need to read more but ultimately they're a lawful resident or not. What's the point of considering them a "refugee" if they're entitled to the same benefits as a lawful resident anyway? Either we trust them enough to be in this country and therefore be entitled to the benefits that entails, or not.
> The Immigration Reform and Control Act of 1986 (IRCA) makes it illegal for an employer to discriminate with respect to hiring, firing, or recruitment or referral for a fee, based upon an individual's citizenship or immigration status.
The Civil Rights Act also prohibits discrimination on national origin.
Obviously the CRA does not mean you have to hire blind people to be truck drivers. You do have to provide reasonable accommodation for jobs they can do. If you circumvent the reasonable accommodation requirement by eg barring people by immigration status for jobs where it is irrelevant, you're breaking the law.
It's the "permanent" bit. Being an asylee or refugee isn't necessarily a permanent status - like if your home country gets out of a civil war or a coup leader ends the coup and goes into exile, you no longer need to fear for your life if you go back.
> If you are a refugee, you are required by law to apply for permanent resident status 1 year after being admitted to the United States in refugee status. If you are an asylee, you are not required to apply for permanent resident status after being granted asylum for 1 year.
The law for immigration status in hiring is that you can't discriminate on the basis of it unless the government requires you to. The government's saying both that ITAR doesn't actually restrict asylees and refugees, and also that not being a "US person" under ITAR isn't really a bar that should count (you can get approval from the government for non-US persons to work on export-controlled stuff, or have them work on other things).
You can tell they're really hanging their hat on the first one, though: even if you say for simplicity you want to have only "US persons" under ITAR, that doesn't justify excluding asylees and refugees.
Among the evidence in the filing is, of course, an Elon Musk tweet, saying you need at least a green card to work at SpaceX.
Also, the numbers: over the course of about four years SpaceX hired exactly one asylee, and that one shortly after they were told they were under investigation.
For comparison: I searched for "DOJ sues for discriminating against asylees and refugees in hiring -spacex" on google to see other companies' headlines for this:
- Microsoft
- Aero Precision
- Technology Hub
- KForce Tech
- Facebook
- Giant Food
- etc.
If there's a political angle here, I'm more inclined to believe that Democrat-lead exec branches lead to more employment discrimination enforcement thatn Republican-lead ones.
This seems politically motivated, rather than something in the pursuit of justice. If it was about justice, step one would be to send an official legal document, giving SpaceX authority to hire non US citizens.
This makes me lose faith in the justice system, as well as trust in the powers that be. This isn't justice, this is political. And unfortunately, it will even receive popular support, just because people simply don't personally like the CEO of the company.
To heck with truth and justice, let's tar and feather the Muskerino man!
This seems like an unreasonably convoluted rule. Why should citizens, permanent residents, asylees and refugees, but not visa holders be able to access export-controlled information? It seems almost guaranteed to trip up employers in visa-heavy industries.
Summary: SpaceX, a company that regularly handles Top Secret US Government Classified Satellites and ITAR Material, is being sued by the the US Government for not hiring... foreign nationals that aren't allowed to handle Top Secret US Government Classified Satellites and ITAR Material.
I probably have to take training classes every year as a hiring manager about what I can and cannot ask in the hiring process, and not asking citizenship and anything beyond "Are you eligible to work in the US?" I forsee a bunch of these training classes in SpaceX's future.
- Ongoing disagreement between SpaceX and DOJ regarding applicable law?
- SpaceX HR misunderstanding, at the time, the applicable law? (I can see how this category of applicants might be rare enough that HR people fail to account for them.)
- SpaceX HR policy lining up with DOJ's view, but hiring managers choosing candidates with a suspicious statistical distribution?
It looks like SpaceX HR fucked up something that's should be pretty obvious to HR departments. They've already corrected it and will likely be fined for the mistake. Nothing nefarious here either way, not intentionally as far as I can tell.
Tin-foil hat time, but with the current Biden Administration, you also have to consider the possibility that it's a shot across the bow to ensure Twitter censors "misinformation" going into the US elections.
If this does not work, perhaps the IRS next up to bat?
This seems ripe for exploitation by foreign intelligence agencies:
"Moreover, asylees’ and refugees’ permission to live and work in the United States does not expire, and they stand on equal footing with U.S. citizens and lawful permanent residents under export control laws. Under these laws, companies like SpaceX can hire asylees and refugees for the same positions they would hire U.S. citizens and lawful permanent residents. And once hired, asylees and refugees can access export-controlled information and materials without additional government approval, just like U.S. citizens and lawful permanent residents."
So the idea is that the DOJ is deebly goncerned that one of their political enemies du jour is not hiring the "refugees" (in most cases economic migrants) they are illegally allowing to enter the country with approximately zero screening or even basic proof of identity, to work on highly sensitive dual use military technology.
Interesting. As a company angling or fulfilling large government contracts for sensitive projects I would have thought they had at least some requirements to avoid hiring non US-persons. Curious if they have a valid argument to have extended that practice to the whole company as this release seems to state.
Wow, there is a ton of confusion in these comments about U.S. export law, and what this suit is about.
U.S. export control law is intended to prevent technologies that have military significance from spreading beyond the U.S. There are two relevant regimes: Export Administration Regulations (EAR), administered by the Department of Commerce, and International Traffic in Arms regulation (ITAR), which is administered by the Department of State. ITAR regulates weapons and weapon-adjacent technologies, EAR regulates a much larger set of technologies with military significance.
The provision of these export control laws that's relevant here is that U.S. companies can only allow "U.S. Persons" to access export-controlled technology. A "U.S. Person" is a technical term that currently includes four categories: U.S. Citizens, U.S. permanent residents (green card holders), asylum seekers, and refugees. Anyone not in these categories can only access export-controlled technology with a waiver.
SpaceX, like many aerospace companies, deals with ITAR-regulated technology. (A rocket is the same thing as a missile, except for the bomb on the end). So, they hire only U.S. Persons. This is legal and quite common in the aerospace industry. It sucks for international engineers (there are so many amazing Iranian RF engineers ugh), but it's much easier to not need internal ITAR controls.
The DOJ is alleging that SpaceX hired only the first two types of U.S. persons, and excluded asylum seekers and refugees, even though they're treated identically by export control law. Which, honestly, is a really common misunderstanding in the industry (and in these comments too). People have a sense of "ITAR is strict" and think that only U.S. citizens are allowed, and they forget about the other three categories. SpaceX is definitely wrong - they unlawfully discriminated against candidates based on national origin and citizenship. The DOJ is definitely right, and I have to assume SpaceX will settle rather than contesting the suit.
It is possible that SpaceX deliberately discriminated against refugees and asylum seekers. But I suspect what happened is that they misunderstood export control law early on in the company's history, and their HR/Legal for whatever reason did not correct the wrong claims about export control law. (Though it is odd that the DOJ alleges discrimination in 2018-2020, SpaceX was a huge company at that point and should have clearly understood export control law).
Source: A lot of export control briefings during onboarding at companies, hiring engineers for EAR-controlled roles. I also made that mistake myself by writing a posting that specified only U.S. citizens or permanent residents, though in my case HR caught it and corrected it.
Thanks for the explainer. I’m on mobile so I’ll look up the exact language later. But since you seem knowledgeable about this, why are those granted asylum and refugee status included as “US persons” in the context of this employment classification? I can venture a guess, but my guess is really that it’s kind of a hanger-on from the Operation Paperclip and Cold War days, where we’d obviously want to bring in certain human capital from hostile regimes for our benefit. Basically I’m looking to understand more about the history of those regulations.
I have no sense of how common these sorts of investigations are so I have no idea if it is political, but fwiw I feel like I see US Citizen for ITAR requirements not infrequently. I am surprised this could not be settled with a small payment and a fix to their job listings.
> The United States seeks fair consideration and back pay for asylees and refugees who were deterred or denied employment at SpaceX due to the alleged discrimination.
Does anybody know how such penalties are calculated? In "role-based damages," penalties would be limited to the total wages for the hiring reqs in question. This corresponds to the counterfactual where each of the roles would have been gone to an asylee. But I could also see the DOJ arguing that every "deterred" asylee is owed foregone wages. This "applicant-based damages" doesn't correspond to any serious counterfactual, but it has the virtue of being a much bigger number.
[+] [-] Manuel_D|2 years ago|reply
This is perhaps pedantically, but not practically correct. ITAR restrictions, for example, prohibit foreigners from using or testing night vision equipment (even on US soil). If a team is hiring a rocket engineer, and it's a violation of ITAR for them to see technical data on SpaceX's rocket program then it's effectively impossible for a non-US person to perform in this role. Perhaps SpaceX could have phrased things differently, like "this job requires access to ITAR-controlled technical material..."
Now, as to whether or not asylees are able to access ITAR restricted material seems a bit more complicated. Searching around the internet it seems that only some asylees are able to access ITAR material: https://exportcompliancesolutions.com/blog/2018/09/20/u-s-pe...
[+] [-] Transpire7487|2 years ago|reply
Edit: seems like the DOJ is claiming that that is not the case. Weird…so this is basically going to boil down to each side arguing their interpretation of a regulation.
Can’t say this doesn’t smell just a little political.
[+] [-] foooorsyth|2 years ago|reply
The President of the United States very publicly called for Musk and his companies to be investigated back in November of ‘22. Ironically, this was because of supposed relationships with other countries.
https://www.reuters.com/technology/biden-says-elon-musks-rel...
So he deserves investigation due to foreign business relationships, then gets sued for not hiring (edge-case) foreigners to build state of the art rocket technology. Cue the Curb Your Enthusiasm theme song.
[+] [-] WaitWaitWha|2 years ago|reply
It is possible that the roles identified by the DOJ are not under these restriction.
That said, how is this going to be resolved with the compliance requirements
[+] [-] xNeil|2 years ago|reply
[+] [-] Quillbert182|2 years ago|reply
[+] [-] HWR_14|2 years ago|reply
There is also an active question of if the discrimination is still happening, in which case the governments goal is to prevent compliance only in the job listings.
[+] [-] unknown|2 years ago|reply
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[+] [-] dragonwriter|2 years ago|reply
Legal disputes often center on disputes on the meaning of law (including regulations.)
That's…not weird at all.
> Can’t say this doesn’t smell just a little political.
Yes, government actions often smell just a little “of or relating to government, a government, or the conduct of government”.
[+] [-] unknown|2 years ago|reply
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[+] [-] ihsw|2 years ago|reply
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[+] [-] Animats|2 years ago|reply
[1] https://www.nytimes.com/2023/08/18/us/politics/cyberattacks-...
[2] https://www.dni.gov/files/NCSC/documents/SafeguardingOurFutu...
[+] [-] guhidalg|2 years ago|reply
[+] [-] systemvoltage|2 years ago|reply
[deleted]
[+] [-] nphase|2 years ago|reply
[+] [-] arcticfox|2 years ago|reply
[+] [-] Bloating|2 years ago|reply
[+] [-] systemvoltage|2 years ago|reply
Let’s not normalize this as common occurrence.
[+] [-] endisneigh|2 years ago|reply
This:
> Because SpaceX works with certain goods, software, technology and technical data (referred to here as export-controlled items), SpaceX must comply with export control laws and regulations, including the International Traffic in Arms Regulations and the Export Administration Regulations. Under these regulations, asylees, refugees, lawful permanent residents, U.S. citizens and U.S. nationals working at U.S. companies can access export-controlled items without authorization from the U.S. government. Therefore, these laws do not require SpaceX to treat asylees and refugees differently than U.S. citizens or green card holders. Find more information here on how employers can avoid discrimination when complying with export control requirements.
Seems to be the issue.
But why would it be against the law for a US company to discriminate against someone without valid immigration status? I assume the issue here is a refugee has some authorization for lawful employment and SpaceX still doesn't want to hire them wholesale, hence the suit.
IMHO the United States' convoluted immigration and refugee policy is to blame. Why not triage everyone to being "legal permanent resident" and remove the distinction between refugee/asylee and other types of lawful residents? I'd need to read more but ultimately they're a lawful resident or not. What's the point of considering them a "refugee" if they're entitled to the same benefits as a lawful resident anyway? Either we trust them enough to be in this country and therefore be entitled to the benefits that entails, or not.
[+] [-] hwillis|2 years ago|reply
https://www.eeoc.gov/national-origin-discrimination
The Civil Rights Act also prohibits discrimination on national origin.
Obviously the CRA does not mean you have to hire blind people to be truck drivers. You do have to provide reasonable accommodation for jobs they can do. If you circumvent the reasonable accommodation requirement by eg barring people by immigration status for jobs where it is irrelevant, you're breaking the law.
[+] [-] ncallaway|2 years ago|reply
Both asylum and refugee status are valid immigration statuses. Why do you assert that they aren’t?
[+] [-] wslack|2 years ago|reply
> If you are a refugee, you are required by law to apply for permanent resident status 1 year after being admitted to the United States in refugee status. If you are an asylee, you are not required to apply for permanent resident status after being granted asylum for 1 year.
[+] [-] zerocrates|2 years ago|reply
You can tell they're really hanging their hat on the first one, though: even if you say for simplicity you want to have only "US persons" under ITAR, that doesn't justify excluding asylees and refugees.
Among the evidence in the filing is, of course, an Elon Musk tweet, saying you need at least a green card to work at SpaceX.
Also, the numbers: over the course of about four years SpaceX hired exactly one asylee, and that one shortly after they were told they were under investigation.
[+] [-] lallysingh|2 years ago|reply
- Microsoft
- Aero Precision
- Technology Hub
- KForce Tech
- Facebook
- Giant Food
- etc.
If there's a political angle here, I'm more inclined to believe that Democrat-lead exec branches lead to more employment discrimination enforcement thatn Republican-lead ones.
[+] [-] TheAlchemist|2 years ago|reply
[+] [-] ta8645|2 years ago|reply
[+] [-] VoodooJuJu|2 years ago|reply
To heck with truth and justice, let's tar and feather the Muskerino man!
[+] [-] whats_a_quasar|2 years ago|reply
[+] [-] sebzim4500|2 years ago|reply
[+] [-] giraffe_lady|2 years ago|reply
[+] [-] SpicyLemonZest|2 years ago|reply
[+] [-] whimsicalism|2 years ago|reply
[+] [-] exabrial|2 years ago|reply
[+] [-] VectorLock|2 years ago|reply
[+] [-] CoastalCoder|2 years ago|reply
- Ongoing disagreement between SpaceX and DOJ regarding applicable law?
- SpaceX HR misunderstanding, at the time, the applicable law? (I can see how this category of applicants might be rare enough that HR people fail to account for them.)
- SpaceX HR policy lining up with DOJ's view, but hiring managers choosing candidates with a suspicious statistical distribution?
[+] [-] myko|2 years ago|reply
[+] [-] solardev|2 years ago|reply
Kinda like the labor people going after Starbucks with a vengeance after years of nothing under Trump.
[+] [-] tenpies|2 years ago|reply
If this does not work, perhaps the IRS next up to bat?
And it's a very thin tin-foil hat I'm wearing given that the Biden Administration was literally telling the tech companies who to censor, up until the courts ruled they could not do that: https://www.usatoday.com/story/tech/news/2023/07/04/judge-bl...
[+] [-] black6|2 years ago|reply
"Moreover, asylees’ and refugees’ permission to live and work in the United States does not expire, and they stand on equal footing with U.S. citizens and lawful permanent residents under export control laws. Under these laws, companies like SpaceX can hire asylees and refugees for the same positions they would hire U.S. citizens and lawful permanent residents. And once hired, asylees and refugees can access export-controlled information and materials without additional government approval, just like U.S. citizens and lawful permanent residents."
[+] [-] slavboj|2 years ago|reply
[+] [-] master_crab|2 years ago|reply
[+] [-] hersko|2 years ago|reply
[+] [-] pengaru|2 years ago|reply
You'd think a rocket company of all places would know there's clearly precedence of non-citizens contributing to the US development of spaceflight.
https://en.wikipedia.org/wiki/Wernher_von_Braun#American_car...
https://en.wikipedia.org/wiki/List_of_German_rocket_scientis...
[+] [-] whats_a_quasar|2 years ago|reply
U.S. export control law is intended to prevent technologies that have military significance from spreading beyond the U.S. There are two relevant regimes: Export Administration Regulations (EAR), administered by the Department of Commerce, and International Traffic in Arms regulation (ITAR), which is administered by the Department of State. ITAR regulates weapons and weapon-adjacent technologies, EAR regulates a much larger set of technologies with military significance.
The provision of these export control laws that's relevant here is that U.S. companies can only allow "U.S. Persons" to access export-controlled technology. A "U.S. Person" is a technical term that currently includes four categories: U.S. Citizens, U.S. permanent residents (green card holders), asylum seekers, and refugees. Anyone not in these categories can only access export-controlled technology with a waiver.
SpaceX, like many aerospace companies, deals with ITAR-regulated technology. (A rocket is the same thing as a missile, except for the bomb on the end). So, they hire only U.S. Persons. This is legal and quite common in the aerospace industry. It sucks for international engineers (there are so many amazing Iranian RF engineers ugh), but it's much easier to not need internal ITAR controls.
The DOJ is alleging that SpaceX hired only the first two types of U.S. persons, and excluded asylum seekers and refugees, even though they're treated identically by export control law. Which, honestly, is a really common misunderstanding in the industry (and in these comments too). People have a sense of "ITAR is strict" and think that only U.S. citizens are allowed, and they forget about the other three categories. SpaceX is definitely wrong - they unlawfully discriminated against candidates based on national origin and citizenship. The DOJ is definitely right, and I have to assume SpaceX will settle rather than contesting the suit.
It is possible that SpaceX deliberately discriminated against refugees and asylum seekers. But I suspect what happened is that they misunderstood export control law early on in the company's history, and their HR/Legal for whatever reason did not correct the wrong claims about export control law. (Though it is odd that the DOJ alleges discrimination in 2018-2020, SpaceX was a huge company at that point and should have clearly understood export control law).
Source: A lot of export control briefings during onboarding at companies, hiring engineers for EAR-controlled roles. I also made that mistake myself by writing a posting that specified only U.S. citizens or permanent residents, though in my case HR caught it and corrected it.
[+] [-] remarkEon|2 years ago|reply
[+] [-] whimsicalism|2 years ago|reply
[+] [-] cltby|2 years ago|reply
Does anybody know how such penalties are calculated? In "role-based damages," penalties would be limited to the total wages for the hiring reqs in question. This corresponds to the counterfactual where each of the roles would have been gone to an asylee. But I could also see the DOJ arguing that every "deterred" asylee is owed foregone wages. This "applicant-based damages" doesn't correspond to any serious counterfactual, but it has the virtue of being a much bigger number.