Special thanks to co-authors Eunkyung Kim Shin and Alexandre Lamy.
Last month, the U.S. Department of Justice issued a new fact sheet reminding employers of how to simultaneously comply with export control regulations and avoid running afoul of anti-discrimination provisions contained in the Immigration and Nationality Act. The new fact sheet aligns with recent DOJ enforcement actions against a range of companies in relation to overly restrictive job postings, hiring processes and employment eligibility verification processes.
Employers, particularly within human resources, recruitment and trade compliance, must be aware of how to walk this tightrope to ensure that good faith compliance efforts do not unintentionally create a compliance risk.
The DOJ Fact Sheet and Enforcement Trend
The DOJ fact sheet provides specific guidance to help employers navigate export control regulations without committing discrimination as it relates to recruiting and hiring.
As further discussed in this article, the DOJ fact sheet encourages employers to (1) limit export control language in job advertisements to avoid unintentional discrimination; (2) separate export compliance assessments from the I-9 process; (3) ensure I-9 documentation is stored separately from export compliance documentation; and (4) ensure they provide training for employees involved in export compliance and employment verification processes
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Original article published in Law360.