Human Resource Blog

Kentucky Discrimination Law

Our HR person in Kentucky 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 HR person is right. As a result of the IRCA (Immigration Reform and Control Act of 1986), employers are legally allowed to make copies of an employee’s work eligibility documents as specified on the I-9 or Employment Eligibility Verification form.

The law doesn’t require making copies, but allows businesses to do so. Many companies have enacted such policies, because it is the employer’s responsibility to prove all employees are eligible to work in the United States. Hiring undocumented workers is illegal and can subject the company to a massive fine.

Asking an applicant for a Social Security card or driver’s license to prove eligibility can be problematical. Unless this practice is fairly and evenly applied, the employer could be open to charges of discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination against sex, color, race, religion or country of origin. If a company only requested such documents from Hispanic applicants, for example, that would constitute discrimination.

Additionally, the IRCA prohibits discrimination based on citizenship. A company that refused to hire or even interview a prospective employee who presented a resident alien card would be guilty of illegal discrimination as well.

The concern relates to the personal, legally protected information on these eligibility documents, such as color, sex, race, religion and nationality. Asking applicants for these documents can open businesses to charges of discrimination. Many companies, therefore, enact policies that only make copies of eligibility documents after the employee is on the job.

All employers who copy employee’s eligibility documents must keep those copies on file for at least a year after termination or for three years from the worker’s date of hiring. Enforcement of this law is conducted by both ICE (Immigration and Customs Enforcement) and by the U.S. Department of Labor.

Failure of an employer to follow this law can result in a fine as much as $200,000 per employee. JH