SpaceX has filed an objection to a magistrate judge’s ruling in an ongoing case involving alleged citizenship bias in its employment processes. The case is currently being investigated by the Department of Justice (DOJ), which SpaceX says wrongly allowed the scope of the investigation to snowball far beyond the single complaint of a disgruntled former job applicant.
SpaceX’s lawyers says that the magistrate judge erred by focusing too much on whether the DOJ’s inquiries were related to its investigation and not enough on whether the investigation was even authorized in the first place. The original complaint was filed in June of last year with the DOJ’s Immigrant and Employee Rights Section by an unnamed non-citizen who applied for a job.
Since then, the DOJ claims that SpaceX has stonewalled efforts to obtain information from the company. SpaceX has provided a Form I-9 spreadsheet of information related to employees dating back to June 2019, but has not responded to requests for documents like employees’ passports, driver’s licenses, or Social Security cards.
The matter may be further complicated by SpaceX’s contracts with the Department of Defense. SpaceX frequently bids on contracts to launch assets for government agencies that include NASA and the Department of Defense (DoD) and has launched hardware that includes GPS satellites, which are currently managed by the new U.S. Space Force.
Existing and proposed regulations impacting contractors that work for the Department of Defense have very specific requirements about the citizenship status of employees working on the contract. For instance, an alternate version of 48 CFR § 3052.204-71, which impacts contractors’ employees’ access to Department of Defense Information Technology resources, reads:
(k) Non-U.S. citizens shall not be authorized to access or assist in the development, operation, management or maintenance of Department IT systems under the contract, unless a waiver has been granted by the Head of the Component or designee, with the concurrence of both the Department’s Chief Security Officer (CSO) and the Chief Information Officer (CIO) or their designees. Within DHS Headquarters, the waiver may be granted only with the approval of both the CSO and the CIO or their designees. In order for a waiver to be granted:
(1) There must be a compelling reason for using this individual as opposed to a U.S. citizen; and
(2) The waiver must be in the best interest of the Government.
So it’s possible that SpaceX simply erred on the side of caution when choosing an employee who might have to coordinate with Department of Defense employees and sometimes access its IT resources. Elon Musk, an immigrant himself, may simply have been caught between a rock and a hard place and had to choose between following Department of Defense regulations and following the laws and regulations enforced by the U.S. Department of Labor and Equal Employment Opportunity Commission. It might have had nothing to do with deliberate discrimination on the part of the company and everything to do with a business decision that attempted to follow DoD guidelines for work on government contracts.
In any case, it would be easy for the Department of Justice to allow the original complaint by a disgruntled non-U.S. citizen who was turned away to expand beyond the scope of the original complaint. SpaceX is appealing the matter to a federal level judge based in Los Angeles.