The U.S. Department of Justice is investigating Elon Musk’s SpaceX for allegedly preferring to hire American citizens over non-citizens.
According to the DOJ, in March 2020, a non-U.S. citizen inquiring about the position of technology strategy associate at SpaceX was asked about his citizenship status. DOJ attorney Lisa Sandoval stated that SpaceX “ultimately failed to hire him for the position because he is not a U.S. citizen or lawful permanent resident.”
Last Thursday, the DOJ filed a request with a judge “to order SpaceX to comply with an administrative subpoena for documents related to how the company hires,” CNBC reported. The DOJ wants SpaceX to comply with its subpoena within two weeks.
The disgruntled applicant initially filed a complaint of employee discrimination with the DOJ’s Immigrant and Employee Rights Section (IER) on May 29, 2020. The IER enforces the anti-discrimination provision of the Immigration and Nationality Act, which has an anti-discrimination provision prohibiting citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee.
IER emailed SpaceX on June 8 that an investigation was underway and asked SpaceX to hand over information and documents related to its hiring and employment eligibility verification processes. The letter stated, “IER’s investigation is not … limited only to the specific allegations and/or claims that [the Charging Party] made in the charge summarized above. Our investigation therefore may also explore whether [SpaceX] engages in any pattern or practice of discrimination that 8 U.S.C. § 1324b prohibits.”
According to the document filed on Thursday, SpaceX responded on August 28, sending the DOJ a Form I-9 spreadsheet, but “SpaceX refused to produce any Form I-9 supporting documentation, such as copies of employees’ passports, driver’s licenses, or Social Security cards, as requested.”
On October 7, 2020, IER obtained the subpoena from an OCAHO administrative law judge; SpaceX received the subpoena on October 12. On October 20, representatives from the DOJ met with SpaceX’s counsel; on October 26, SpaceX filed to either revoke or modify the subpoena, arguing that the subpoena exceeded IER’s authority. On November 1, IER filed its opposition to SpaceX’s action.
On December 1, 2020, OCAHO denied SpaceX’s petition to modify or revoke and ordered SpaceX to comply with the subpoena. On December 11, 2020, SpaceX said it had received OCAHO’s order but notified IER that it did “not intend to produce any additional information in response to the administrative subpoena.”
The DOJ asserted, “This Court should order SpaceX to comply with the Subpoena because, as OCAHO ruled: (1) IER has authority to investigate SpaceX, (2) IER followed proper procedural requirements, (3) the evidence sought by the Subpoena is directly relevant to IER’s investigation, and (4) the investigation is not unduly burdensome.”
“Petitioner’s failure to establish overbreadth or undue burden also means that this Court should not modify the Subpoena, such as by requiring IER to accept a sampling of the Form I-9 supporting documentation or anything less than what is sought,” the DOJ concluded.