A federal judge is holding a hearing after SpaceX refused to comply with a subpoena during a DoJ hiring discrimination investigation

SpaceX CEO Elon Musk. Hannibal Hanschke-Pool/Getty Images
  • A job applicant said SpaceX discriminated against him because of his citizenship status.
  • The has company refused to comply with a DoJ subpoena asking for relevant details.
  • The issue is now being brought to federal court in March.
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The US Department of Justice (DoJ) is investigating SpaceX’s hiring practices after a job applicant filed a complaint claiming he was discriminated against because of his citizenship status.

Elon Musk’s aerospace company refused to comply with a subpoena asking for documentation related to its hiring procedures, according a court document filed by DoJ attorney Lisa Sandoval on January 28.

After a video meeting on Monday between SpaceX lawyers and the DoJ, the company now has until February 26 to respond to the DoJ’s subpoena for the Form I-9 information, which would help determine whether it discriminates in its hiring processes,CNBC reported.

Judge Michael Wilner will hold a hearing on SpaceX’s attempts to block the subpoena on March 18.

The Office of Immigrant and Employee Rights (IER), a division of the DoJ, began its investigations in June after receiving a complaint from a job applicant, Fabian Hutter, who was interviewed for the position of technology strategy associate at SpaceX in March.

The complaint alleged that “SpaceX made inquiries about his citizenship status and ultimately failed to hire him for the position because he is not a US citizen or lawful permanent resident,” per Sandoval’s filing.

Hutter holds dual citizenship in Austria and Canada but is a lawful permanent US resident, CNBC reported, citing court records.

Under US International Traffic in Arms Regulations, non-US citizens can work for SpaceX if they have a green card, the publication added.

Hutter told CNBC that he wasn’t asked technical questions during his interview, and the company didn’t look at this coding examples.

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IER notified SpaceX on June 8 that it had opened an investigation, noting the scope of it wasn’t limited to the specific complaint filed by the job candidate. It also said it would explore whether SpaceX engages in any broader pattern or practice of discrimination.

As part of its investigation, IER requested documentation from SpaceX related to its hiring processes. This included an Excel spreadsheet with all available Form I-9 data collected by the company since June 1, 2019, and “copies of any supporting documentation, and all attachments.”

As part of a Form I-9, which is filled in when a new hire starts, the employee has to identify their citizenship status. The employer must certify that they viewed original documentation proving this.

This is “highly relevant” to the investigation, Sandoval wrote in the filing, “because [the Form I-9 documents] demonstrate, among other things, the extent to which SpaceX hires non-US citizens and may reveal whether or not it is engaging in a pattern of not hiring them due to their citizenship status.”

After IER gave it multiple extensions beyond its initial deadline of June 22, SpaceX finally shared the information provided on the Form I-9 documents on August 28, but refused to produce any supporting documentation, such as copies of employees’ passports, driver’s licenses, or Social Security cards, which IER had requested, Sandoval’s filing says.

Sandoval described the missing information as “critical,” saying it would “enable IER to identify potential victims of citizenship status discrimination and reveal trends in document collection during the employment eligibility verification process that may support an unfair documentary practices claim, which may not be apparent on the Forms I-9 themselves.”

“Indeed, it is hard to imagine information more relevant to an unfair documentary practices investigation (which typically involves an employer asking new hires for more documents than necessary to complete the Form I-9 due to their citizenship status) than the Form I-9 supporting documentation of recent hires,” she added.

From when SpaceX provided the Form I-9 spreadsheet until early October, IER repeatedly contacted SpaceX asking for the supporting evidence, but the company refused to provide it, the filing says.

IER then obtained a subpoena from the Office of the Chief Administrative Hearing Officer (OCAHO), which SpaceX received on October 12, asking it to send IER the relevant documents by October 22.

In a meeting with IER on October 20, SpaceX refused to send the documents, even after IER offered a further deadline extension, per the filing.

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SpaceX then filed a petition on October 26, asking OCAHO to modify or revoke the subpoena, arguing that it exceeds the scope of IER’s authority, is insufficiently definite, and is not relevant to IER’s investigation, according to Sandoval’s filing. SpaceX also said that collecting the information would be “unduly burdensome” because the way it stores these documents means it would have to manually retrieve each one.

OCAHO denied the request on December 1, saying the investigation is within IER’s statutory authority and the subpoena is not too indefinite, as well as reasonably and directly relevant to IER’s investigation.

OCAHO also rejected SpaceX’s claim that the subpoena was too burdensome because the company failed to prove that complying with the subpoena would disrupt its normal business operations. Sandoval added that “any burden imposed by a subpoena on an employer due to its poor record keeping is of its own making.”

OCAHO then ordered SpaceX to comply with the subpoena within 14 days and authorised IER to seek enforcement of the subpoena in the appropriate district court if SpaceX did not comply.

SpaceX has not complied, the filing alleges, and told IER that it “does not intend to produce any additional information in response to the administrative subpoena.”

On January 28, the IER has asked the US district court for the central district of California in Los Angeles to require SpaceX to comply with the subpoena within two weeks.

After Monday’s video meeting on Monday between SpaceX lawyers and the DoJ, the company now has until February 26 to respond to the DoJ’s subpoena for the Form I-9 information.

Judge Michael Wilner will hold a hearing on SpaceX’s attempts to block the subpoena on March 18.

Insider has contacted SpaceX and IER for comment.