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Minnesota Discrimination Law

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Our HR person in Minnesota has instructed us to make copies of the driver’s license and Social Security card of new employees for their I-9. I thought that this was discrimination under the law. Who is right?

The key word to the answer for this question is employee.

Every employer is required to prove that its workers are eligible to work in the United States. The I-9 you mentioned (Employment Eligibility Verification form) is normally used to achieve this. Hiring an undocumented worker is illegal, and subjects the employer to huge fines.

As a result, and under the Immigration Reform and Control Act of 1986 (IRCA), companies are allowed to make copies of an employee’s driver’s licenses, social security cards and any other documents listed on the I-9 which are submitted to verify eligibility. The employee chooses which documents to submit. The employer has no say in it.

Though there is no federal or state law against asking applicants to provide eligibility documents, the possibilities of discrimination are great. Driver’s licenses and other eligibility documents include a lot of personal information such as age, sex, color, religion, that are protected under Title VII of the Civil Rights Act of 1964.

In addition, citizenship status is protected by the IRCA. If a company asks a prospective employee for eligibility documents, and doesn’t hire that person because they presented a resident alien card, that’s illegal discrimination.

Many employers, therefore, have enacted policies not to copy an employee’s driver’s license or social security card until after the worker starts the job.

The copies of these eligibility documents must be kept on file with the employer for one year after the worker is terminated, or for three years from the hiring date, which ever is longer. Many companies choose to keep these documents separate from the worker’s main personnel file. This practice is to help ensure that the worker’s race, color, sex, etc, information can’t be used in any possible acts of discrimination.

Employers that don’t maintain these copies on file can face fines of up to $200,000 per worker. The ICE (Immigration and Customs Enforcement) and the U. S. Department of Labor both enforce this law. JH