Senate Enrolled Act 76 (SEA 76), which takes effect July 1, authorizes the Indiana Office of the Attorney General (OAG) to investigate and pursue enforcement actions against employers that knowingly or intentionally employ unauthorized individuals. The law also permits the OAG to issue civil investigative demands (CIDs) and seek compliance remedies through the courts.
As implementation approaches, many employers are asking a practical question: What could actually trigger an investigation?
Although SEA 76 does not precisely define every circumstance that could lead to an investigation, Attorney General Todd Rokita, who refers to SEA 76 as the “FAIRNESS Act,” has stated publicly that the OAG is already receiving tips regarding potential violations and plans to increase outreach and employer engagement ahead of the law’s effective date. Further, he has indicated that the OAG intends to utilize CIDs, where appropriate, to gather information related to hiring and employment practices.
While each situation will depend on its specific facts, public comments from the OAG suggest investigations are most likely to stem from complaints or tips regarding potential violations, inconsistencies in hiring or verification practices, failures to respond appropriately to documentation discrepancies or other indications that an employer may have disregarded work authorization requirements.
As a practical matter, employers should expect scrutiny to focus on whether businesses maintain consistent hiring procedures, properly utilize verification tools, respond appropriately to discrepancies and document good-faith compliance efforts.
Importantly, the statute focuses on employers who knowingly or intentionally recruit, hire or continue employing unauthorized individuals. What this means, in practice, for employers acting in good faith is that documented compliance efforts matter.
The practical takeaway for Indiana businesses is straightforward: Employers should review and document hiring and verification procedures now, ensure human resources personnel are properly trained and maintain consistent compliance practices across recruiting and onboarding activities.
Importantly, employers do not need to reinvent their compliance programs from scratch. The OAG has publicly indicated that employers utilizing federal guidance and ICE-recommended verification practices – including E-Verify participation – will generally satisfy the law’s “industry best practices” safe harbor expectations.
