Imagine your institution has employed a graduate student to support a technology research program. The student is a citizen of the People’s Republic of China and holds a student visa, but is not authorized to view certain export-controlled technical data. Unclear of the restrictions in place, other researchers in your department provide the foreign student with technical data related to a military research project in the course of the student’s work. As highlighted in the conviction and sentencing of University of Tennessee Professor John Reece Roth, realistic scenarios like this can result in substantial penalties with the U.S. State Department, and possibly jail time if determined to rise to the level of criminal conduct.
It appears that a university policy to screen out foreign candidates for certain research positions of sensitive nature would have prevented this violation and penalty, but an educational institution also faces the challenge of avoiding discrimination in its hiring practices. Is this a lose-lose scenario? Not quite, but institutions must pay close attention to recent guidance and regulatory revisions to understand their compliance obligations.
On March 31, 2016, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) released its most recent guidance to employers to aid them in navigating the murky waters where export regulations meet immigration antidiscrimination regulations.
These two regulated areas may contradict each other when it comes to the hiring practices of U.S. companies soliciting candidates for a position where the job duties impose compliance with export control laws. Unfortunately, the limited governmental guidance confounds some employers when it comes to complying with both sets of regulations in certain scenarios. The OSC’s recent guidance and, effective September 1, 2016, definitional changes within the export control laws, affecting the definition of “fundamental research,” do provide some general direction for employers.
Please continue reading how these issues and recent amendments affect industry and academia alike: Compliance Conundrum — Unauthorized Exports v. Discrimination: Find a Win in a Lose-Lose Scenario.