Alongside the settlement agreement with GM, the DoJ’s Civil Rights Division released a fact sheet on ways employers can avoid immigration-related discrimination under the INA when complying with export control laws.
The INA generally prohibits employers from making “hiring, firing, or recruiting decisions based on workers’ citizenship, immigration status, or national origin; or treat[ing] workers differently based on these characteristics when verifying their permission to work, including during the Form I-9 and E-Verify processes.”
As clarified in the fact sheet, these nondiscrimination practices also apply when complying with export control laws and regulations, including the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations (EAR).
GM Investigation
In July 2020, the Civil Rights Division’s Immigrant and Employee Rights (IER) section notified GM that it had initiated an investigation to determine whether the company had engaged in any unfair employment practices prohibited under the anti-discrimination provision of the INA.
The findings of that investigation concluded there was “reasonable cause to believe that [GM] engaged in a pattern or practice of unfair documentary practices on the basis of citizenship status from at least July 1, 2019, until May 12, 2021, when its personnel at headquarters and at least one field office requested that non-U.S. citizen new hires provide more documents than required by law and/or specific documents, based on their citizenship status, during the employment eligibility verification process.”
IER also concluded there was reasonable cause to believe that GM, from at least July 1, 2019, until at least September 2021, “maintained a policy that discriminated against lawful permanent residents in the hiring process based on their citizenship status…by requiring them to provide unnecessary documentation (i.e., an unexpired foreign passport) as a condition of employment.”
According to the DoJ, the violations resulted, in part, from GM’s failure to properly consider the INA’s nondiscrimination requirements when also complying with export control laws.
GM contended its actions were not unlawful and that it did not engage in a pattern or practice of discrimination against any of its employees or candidates or applicants for employment. GM did not admit to any wrongdoing.
Compliance Requirements
In addition to paying $365,000 in civil penalties, GM must revise or create employment policies that, in part, “clarify that the export control assessment is separate from the employment eligibility verification (EEV) process.” To the extent it’s necessary to obtain documentation of a worker’s citizenship status or country of citizenship for purposes of the export control assessment, GM must “collect such documentation in a process that is clearly separate and distinct from the EEV process,” the settlement agreement states.
The agreement further requires GM to designate an employee “knowledgeable about the EEV process and applicable rules to be the point of contact to whom questions about EEV can be directed.” Separately, GM must designate a different employee “knowledgeable about the export control assessment process and applicable rules to be the point of contact to whom questions about the export control assessment process can be directed.”
These points of contact must be included in personnel directories. Additionally, each point of contact must be “adequately trained for their respective responsibilities,” the settlement agreement states.
From a compliance governance standpoint, the settlement agreement requires GM to “separate storage of EEV documentation and export control assessment documentation, even if the same documentation is used for both processes.”
The settlement agreement also requires GM to “explain in any documents that reference export control or export control assessment, including any forms that ask employees to identify their citizenship or immigration status for purposes of export control compliance, the legal basis for such verification.”
GM’s settlement agreement, in combination with the DoJ’s new fact sheet, provide additional guidance for all compliance officers on ways companies can prevent immigration-related discrimination under the INA when complying with export control laws. 
Jaclyn Jaeger is a contributing editor at Compliance Chief 360° and a freelance business writer based in Manchester, New Hampshire.