Human Resource Blog

Indiana Discrimination Law

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Our HR person in Indiana 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?

It’s entirely legal to make copies of the documentation of either employees or applicants, so your HR person is correct. It is not a good idea to copy the paperwork of applicants, however, because that could open the door to charges of discrimination. As a result, many employers will wait until a person is hired before copying the documents used to offer proof that someone is legally allowed to work in the U.S.

Hiring undocumented workers can result in heavy fines as a result of the IRCA or Immigration Reform and Control Act of 1986. The same Act makes it illegal to discriminate based on national origin or citizenship status of anyone legally allowed to work in this country.

To offer proof against charges that they have knowingly hired undocumented workers, many companies copy the documentation and maintain files. The files should be kept for a year after an employee’s termination or 3 years after hiring, whichever is longer.

On the other hand, to avoid charges of discrimination on the job, employers will frequently require that I-9 documentation be kept in a separate filing cabinet from the one used to store an employee’s personnel records.

Employers may not, according to law, tell an applicant which documents, among those the I-9 lists, he or she must use as proof of legality. It could be a driver’s license and a Social Security card. It could as well be a resident alien card, known as a “green card,” and some other document allowed by I-9.

Some employers are also concerned about driver’s licenses, because a license photo may reveal an applicant’s gender, color, or race. They prefer not to have that information available before hiring. This is another reason why employees will wait until after someone is hired to copy supporting documents.

It would be illegal for a company to refuse to interview or hire an applicant who offered a “green card” instead of a driver’s license or Social Security card as documentation.

Keep in mind that violators face fines of up to $200,000 per undocumented worker. JH