Indiana Employment Law: Indiana’s Immigration Bill is Now in Effect . . . Mostly

Effective July 1, 2011, Indiana’s much disputed Senate Bill 590 became law. This bill has been hotly contested since its inception for its harsh response to illegal immigrants in Indiana and those who employ them. Certain provisions are still being litigated in court. Although the bill has been watered down from its most extreme provisions, it still contains many changes to Indiana’s existing law. The hallmark of this Bill is the E-Verify Program, a program electronically verifying the work authorization status of newly hired employees. As of July 1, 2011, all state agencies, political subdivisions, businesses seeking more than a $1000 grant from a state agency or political subdivision, and all contractors and subcontractors entering into or renewing a public contract are required to enroll in and participate in this program for all new hires. Some businesses falling within the purview of participation in E-Verify also have to sign an affidavit stating they do not knowingly employ an unauthorized alien. Many also have to provide documentation of their participation in E-Verify. If businesses with public contracts do not comply with this new program and requirements, that contract will be terminated after thirty days, or as soon as is feasible, if this violation is not remedied. The business will then be liable for actual damages. The government may also file a civil action for reimbursement of unemployment insurance benefits paid to an employer that knowingly employed an unauthorized alien.

Senate Bill 590 also modifies the labor law, criminal law, and tax law in Indiana. All laborers over the age of eighteen cannot work in day labor employment, defined as having no employment agreement specifying the term of employment to be more than three working days, unless they complete an “attestation” that the person is a citizen, national, or an otherwise lawful alien. Police may now file a complaint with the Immigration and Customs Enforcement if they think someone has violated this provision. Criminal offenders will now be evaluated upon arrest as to their citizenship or immigration status. A person’s unlawful status can also now be considered in setting bail. Regarding setting bail under federal immigration law, an unlawful alien may be released from custody only by posting: (1) a cash bond equal to the bail (2) a real estate bond with net equity at least two times amount of bail, or (3) a surety bond in full amount of bail. One new protection for illegal aliens is that police cannot request citizenship or immigration status if that person has contact with the police only as a victim or witness of a crime or for reporting a crime. Many of these new criminal provisions do not apply to religious organizations, health care providers, and other similar organizations. SEA 590 prohibits several state tax deductions and credits for services provided by an individual who is an unauthorized alien. These penalties are not applied, however, if that business is enrolled in the E-Verify program.

Two provisions of SEA 590 have been blocked from enforcement through a preliminary injunction by United States District Court Judge for the Southern District of Indiana, Sarah Evans Barker. On June 24, 2011, she preliminarily enjoined two provisions as potentially violating the fourth amendment and due process rights and potentially being preempted by federal law. The first provision authorizes police to make a warrantless arrest when there is a removal order by an immigration court, a detainer or notice of action from the Department of Homeland Security, or if there is probable cause to believe the person has been indicted for or convicted of one or more aggravated felonies. The second provision being enjoined creates a criminal infraction for any person or business that knowingly or intentionally offers or accepts consular identification, identification documents issued by a foreign government, for any purpose. Until further notice these provisions are not currently valid laws.

To read the new provisions laid out in Senate Bill 590, click here.

To read the preliminary injunction order, click here.

Jeremy Fetty is a partner in the law firm of Parr Richey Frandsen Patterson Kruse with offices in Lebanon and Indianapolis. He often advises businesses and utilities (for profit, non-profit and cooperative) on organizational, human resources, and transactional matters and drafts and reviews commercial contracts. 

The statements contained herein are matters of opinion and general information only and are not to be considered legal advice and should not be construed to form an attorney-client relationship.  If you have any questions regarding this article, please contact an attorney.

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