Human Resource Blog

AZ Discrimination Law

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We have a new employee that just started with our company here in AZ. Our HR department is located in Skokie, IL. I witnessed all of his paperwork down here and sent it up to HR. She called and said that we needed to send a copy of his drivers license and social security card. I heard that we can not copy those things here in AZ due to a certain discrimination law. Is this true? Is it only for AZ or would it apply in IL as well?

You are under a very common and understandable misconception.

 

It is perfectly legal for an employer to make copies of an employee’s driver’s license and social security card. In fact, under the Immigration and Control Act of 1986, employers are encouraged to do so by law when witnessing the employee’s Employment Eligibility Verification form, normally called an I-9. The relevant federal law applies to Illinois as well as Arizona.

However, it can be a problem for a company to ask applicants for a Social Security card or driver’s license, especially if it is applied in a way that discriminates. For example, a company that asked only Hispanic applicants to furnish such documents, and not applicants of other ethnic groups, would be engaged in illegal discrimination.

For that reason, many companies have the policy not to copy an employee’s driver’s license or Social Security card prior to the employee’s first day of work. However, there is no state or federal law that prohibits this, as long as the same procedure is used for every prospective employee, and as long as other documents that prove legal status to work — such as a resident alien card  — are accepted instead.

The Immigration Reform and Control Act of 1986 or IRCA makes it illegal to discriminate against anyone who can legally work in the U.S. based on citizenship status or national origin. However, it also levies hefty fines against any employer who hires an undocumented worker.

Chances are good that what your HR person in Illinois meant to say was,”Please photocopy the supporting documents for the I-9.” Many companies do this because it means that any documents that are forged must be convincing enough to fool at least two people. At other times, it’s done when an employer uses employment verification software.

The IRCA puts the burden of proof on the employer to show that everyone they are hiring can legally work in the U.S., by having each person fill out an Employment Eligibility Verification  I-9 form. Employers are allowed to copy the supporting documents, although the law doesn’t require it. Producing photocopies of convincing documents is one affirmative defense to charges of knowingly hiring undocumented workers — so its a step that many companies require. 

An employer cannot specify which documents the worker will use to complete the I-9. An employee may use a driver’s license plus a Social Security card, a resident alien or “green” card, or any other of the documents that are specified on the I-9 form.

However, if the employee has used a driver’s license and Social Security card to prove identity and legal right to work on the I-9, then the employer is absolutely allowed by law to make copies of those documents.  (If an employee uses an alien registration card or other documents to establish legal right to work and identity on the I-9, then the employer is permitted to copy those documents instead.) The I-9 must be completed within 3 days of hire, and normally on the first day. All documents must remain on file for one year after the employee is terminated, or 3 years after the hire date, whichever is longer.

If you do have such copies, they should be maintained in a separate file with other I-9 documents, not in the employee’s personnel folder. Failure to maintain the I-9 on file can result in fines as high as $200,000 per employee, for repeat offenses. This law is enforced by both the U.S. Department of Labor and ICE, Immigration and Customs Enforcement.

Title VII of the federal Civil Rights Act of 1964 makes it against federal law to discriminate in employment based on race, color, national origin, sex or religion.

The Arizona anti-discrimination law prohibits discrimination based on race, color, national origin, sex, religion or creed. It also protects people who are over 40, pregnant or disabled from discrimination, and prohibits retaliation against anyone who files a good-faith discrimination complaint. The Arizona Attorney General enforces this law. However, this law does not prohibit the copying of documents for the I-9, or for any other legitimate purposes.