ASA Staffing Success - November

basis of citizenship is likely permissible.

The first involves the government space.
Staffing companies supply their govern-
ment clients with temporary workers,
who often need security clearances. The
security clearance process for private con-
tractors is grounded in Executive Order
12829, which established the National
Industrial Security Program. The NISP
operating manual says: “Only U.S. citi-
zens are eligible for a security clearance.
Every effort shall be made to ensure that
non-U.S. citizens are not employed in
duties that may require access to classified
information.”
Thus, U.S. citizenship is required for
security clearances, which is a job require-
ment imposed in the interest of national
security via an executive order. Accord-
ingly, staffing companies can ask applicants
about their citizenship when recruiting for
jobs that require these security clearances,
and they can lawfully eliminate non-U.S.
citizens from consideration.

The second scenario involves jobs within
the nuclear energy industry. The Nuclear
Regulatory Commission is the federal
agency charged with enforcement of the
Atomic Energy Act; its role includes “pro-
tecting…nuclear power plants in the inter-
est of national security.” The NRC requires
all nuclear power operators to implement
unescorted access authorization (UAA)
programs. A UAA program must ensure
that individuals allowed on a nuclear site
without an escort are “trustworthy and
reliable,” without the “potential to commit
radiological sabotage.”
Substantial background investigations
are done on individuals seeking UAA;
a complete personal history, including
questions about citizenship, is under-
taken. Given this background, if a staff-
ing company is providing temporary
labor to a nuclear client, candidates for
those positions can be asked during the
pre-employment stage to disclose their
citizenship. Moreover, if citizenship plays
a part in a failure to obtain UAA from
the client, which in turn would lead to
denial of employment, judicial review
of that employment decision should be
barred under the national-security excep-
tion, because UAA is a site access program
implemented in the interest of national
security under the Atomic Energy Act.

When placing candidates with clients, citizenship requirements are sometimes permissible, sometimes unlawful, and always complicated. Before saying “yes” to a client, consult with your legal department. n

Lisa Ann Cooney, Esq., is general counsel for Yoh. Send feedback on this article to success@ americanstaffing.net. Follow ASA on Twitter @StaffingTweets.

This material is not intended and should not be relied upon as legal advice. ASA members should consult with their own counsel about the legal matters discussed here.