The Justice Department is suing Space X, accusing the Elon Musk-founded company of discriminating against refugees and asylum seekers in the hiring process.
The department alleges in the lawsuit filed Thursday that between September 2018 and May 2022, SpaceX violated the Immigration and Nationality Act by discouraging refugees and asylum recipients to apply for available positions in their marketing materials, rejecting or refusing to hire them and hiring only U.S. citizens and permanent residents.
SpaceX also falsely claimed it could not hire non-U.S. ci
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It also alleges that in postings SpaceX put on job hunting sites and online forums, SpaceX employees specified available positions were only open to U.S. citizens. On applications, potential employees had to check a box indicating their citizenship status, which was then input into a database that managers and recruiters marked with rejection codes, such as "not authorized to work/ITAR ineligible," "does not meet basic qualifications" and "not U.S. citizen/green card."
Rejected applicants with asylum or refugee status had apt experience for the roles, including one person who graduated from Georgia Tech and had nine years of engineering experience and another who the hiring manager said had "some impressive experience listed," the Justice Department said in its lawsuit.
Out of about 10,000 hires between 2018 and 2022, only one person was an asylee and none were refugees, the Justice Department said.
The Justice Department is seeking to have SpaceX pay civil penalties determined by a judge, hire the applicants who were qualified but rejected because of their citizenship status and give back pay to those who were discriminated against.
This is a high order cluster fuck. The government has laws specifically driving this behavior. Now the government is suing them for the specific way they are following the law. I'm watching this one with a bit of chagrin and a lot of professional interest because IMO this is a problem the US government *CREATED*. And this is COMMON behavior that I see in my clients because they believed they were following the law.
Just to explain a little specifically note the ITAR mention. That's a huge driver in itself. ITAR is specifically related to export control restrictions the US government created. Specifically technology that the US government regulates export of outside the United States. I would expect that much of the technology that SpaceX creates is export controlled. Certain technologies are export-controlled by their very nature but also when the US government is writing contracts they often specify/include export-control clauses in the contracts. One of the chief and central requirements is that only US Persons have access to data, physical materials, or support functions that are export controlled. US Persons are defined by law as US citizens or a alien with specific authorization (e.g. permanent alien status aka green card). A refugee is specifically NOT ALLOWED BY THE LAW.
SpaceX likely chose to only hire US persons because they have ITAR data and material all over the place and it'd be unmanageable to have non-authorized personnel on-premises. I have several customers that designate entire facilities as ITAR-restricted and only hire US Persons for this reason. Even if you have non-US Persons in a company, you often have to be careful to not include them in discussions or have any access to ITAR material. If you violate the restrictions, you can lose the ability to compete on government contracts or face civil penalties.
On top, there is a lot of change happening out in the DoD Contractor space. Defense Federal Acquisition Regulation Supplement (DFARS) clauses exist driving this behavior. That includes a major re-alignment underway to the forthcoming Cybersecurity Maturity Model Certification (CMMC) v2 rule that is in the rule-making process at the moment. This will impose a set of cybersecurity, physical controls, and other rules on DoD contractors. One of which is making sure that personnel with access to Controlled Unclassified Data (CUI) are US Persons only.
In other words, this is schizophrenic behavior. We have national security concerns clashing with human rights concerns and being enforced by different parts of the federal government. We're such a shit show. And this is one where it gives credence to Musk's frankly Trump-y comments (edit: I'm referring here to his comments in the article). I wouldn't call this "weaponization" as he calls it but I get why he's sort of calling out this bizarre lawsuit. I'm going to be getting questions about this...Monday if I don't have messages in my inbox already. The DOJ has really fucked up here. Adoption of ITAR and CMMC has been chaotic without the DOJ now making companies figure out ways to manage how they hire prohibited employees.
Just one more note - there is some daylight here in interpretation to be fair. This isn't that the DOJ is absolutely wrong but it certainly seems unwise as someone who lives/breathes in this space. For example, you could argue there is a path to hire a non-US citizen. In each export, meaning each component you can get a license to "export" the technology and hire non-US persons. This would be subject to a long and expensive review process. Noting as well that an "export" isn't necessarily well defined. I've seen the physical hardware and any software to be considered to be two exports which each required a separate license.
In any case, major parts of the entire industry act like SpaceX and this is a bit of a nightmare for the DoD and agency supply chains. I don't know what the heck they were thinking. I think I might start laughing if a DoD or agency lawyer writes a brief in support of SpaceX in this matter.
I'll confess that I thought companies could only legally hire citizens. I'm glad there are exceptions for refugees, but I can sure understand why a company involved in sensitive technology wouldn't want to go there.
Malchior is spot on here. I lived in the ITAR world and it is messy and cumbersome as expletive. The definition of a zUS person is interesting. US citizen and green card, but if you work for a foreign company, you could be viewed as a non US person. The requirements for being subject to ITAR were stupid as expletive. They cleaned some of it up, but turned around and went stupid on cyber security.
Montag wrote: ↑Sat Aug 26, 2023 9:55 pm
Malchior is spot on here. I lived in the ITAR world and it is messy and cumbersome as expletive. The definition of a zUS person is interesting. US citizen and green card, but if you work for a foreign company, you could be viewed as a non US person.
Dual citizenship is an issue too. A dual citizen seeing ITAR data is sometimes considered an export. Edit: Yet one law firm who had this issue was fined and agreed to pay back wages. In other words, even a law firm who specialized in this couldn't unravel the complex requirements. It's a minefield.
The requirements for being subject to ITAR were stupid as expletive. They cleaned some of it up, but turned around and went stupid on cyber security.
FWIW out of necessity. China was able to steal quite a lot of CUI/ITAR data and cloned entire military platforms. That is a big part behind why CMMCv2 is coming.
For people not in the DIB community, this is no small problem. There are 200K companies in the DoD supply chain alone from the big prime contractors (e.g. Lockheed, Boeing, L3Harris, etc.) all the way down to mom and pop CNC/machine shops. There were no uniform controls about what data should be protected or how we should govern whether companies are protecting that data. Now we have this matter to further confuse things. If DOJ prevails over this definitional stuff, then it potentially opens a huge gap in our national defense that no one anticipated.
Edit: Just got a "flash update" that indicates the DOJ civil rights division has long taken this position and there has been a long-time tension between it and the agencies over the issue. They've successfully bullied a few smaller companies on this matter but no one as big as SpaceX.
Can someone dumb this down for me?
It sounds like.
DOJ says you can't exclude noncitizens but the DOD (or whoever controls that) says you cant hire noncitizens for their stuff.
I could be very wrong though so I'm hoping our government isn't that stupid.
Kraken wrote: ↑Sat Aug 26, 2023 6:34 pm
I'll confess that I thought companies could only legally hire citizens. I'm glad there are exceptions for refugees, but I can sure understand why a company involved in sensitive technology wouldn't want to go there.
In general*, it is illegal for a hiring company to even _ask_ if an applicant is a US citizen. The company can only ask if the applicant is “legally permitted to work in the United States “.
*Many companies are exempt from this restriction, for example small businesses.
The trouble is the complexity of Federal contracting requirements. There are overlapping laws, programs, executive orders, and such. In the last say...five or so years...we've been starting to get serious about protecting even unclassified data. Mostly because China and other nations started stealing everything and cloning our technology.
Meanwhile the DOJ Civil Rights division is doing it's damn part to make sure America isn't safe in a dangerous world. And I can even say it not even "wrong". They've taken a position and they are just enforcing the law as they believe it is. This probably needs to be fixed in Congress...but LOL at that. I don't think when they amended the immigration regulations back in 1985 that they were thinking that the DIB would turn into a 200K wide network of companies with everything connected to the public internet. But that is where we are. It keeps me busy but I can't help but think this is another area where our enemies can't believe how silly and unserious we are.
So does that mean that there are laws on the books that directly conflict with each other?
Something like a law that says 50mph is the max speed limit everywhere and another that says the minimum speed everywhere is 60mph?
Punisher wrote: ↑Sun Aug 27, 2023 11:55 pm
So does that mean that there are laws on the books that directly conflict with each other?
Something like a law that says 50mph is the max speed limit everywhere and another that says the minimum speed everywhere is 60mph?
Directly conflicting as above? I don't think that's a good description. It is more that the laws are contradictory from a policy point of view. We have overlapping laws and rules that are becoming unworkable from a compliance viewpoint. It is turning into identifying which risk is more consequential and making a business decision. As a simplistic example - they might have to prioritize passing a DIBCAC/Joint Surveillance/CMMC audit versus eating the fines for hiring discrimination. Complicating the matter is that the auditors may not be in entirely lined up with the latest case law or DOJ opinions. The US government will claim you can (and must) do it all but they sure as heck make it hard to do.
As I mentioned above DOJ has turned up the heat on this issue and that is probably correlated with the pressure to tighten up on ITAR/EAR/CMMC. There has been so much pressure to close off the data breaches lately. I have little doubt SpaceX was acting in good faith because many of their peers (some of which are my clients) act the same way.
Punisher wrote: ↑Mon Aug 28, 2023 12:38 am
I assume that the government doesn't have a step by step on how to comply with everything?
Too much complexity. For CMMC they have a standard (NIST 800-171rev2 - soon to be rev3) that intentionally directs organizations to adopt cybersecurity and physical controls but leaves it up the organizations to figure out how to do it. In any case, the DoD wouldn't be able to tell them how to do it even if they wanted to. Each business has it's own structure, profit model, ways of working, etc.
