At a Glance
- Indiana Senate Enrolled Act (SEA) No. 76, the "FAIRNESS Act" (the Act) creates new state-level prohibitions applicable to employers against knowingly recruiting, hiring, or continuing to employ unauthorized immigrants in Indiana, effective July 1, 2026.
- The law provides a reasonable-diligence defense for employers that verify work authorization through a Department of Homeland Security (DHS) electronic verification program such as E-Verify, or through diligence consistent with industry-standard best practices.
- The Indiana attorney general may seek, against any employer, penalties for violations that escalate from a five-business-day suspension of operating authorization to permanent revocation of all Indiana operating authorizations for willful and repeat violators.
- The Act also prohibits state and local governmental bodies and postsecondary educational institutions from restricting cooperation with federal immigration enforcement in any way. Violations may include civil penalties of up to $10,000 for each violative action.
Overview
The FAIRNESS Act — short for Fostering and Advancing Immigration Reforms Necessary to Ensure Safety and Security — establishes significant new requirements for Indiana employers, governmental bodies, and universities relating to federal immigration law enforcement. The Act: (1) prohibits governmental bodies and postsecondary educational institutions from limiting cooperation with federal immigration authorities, and (2) creates a new state-law cause of action against employers who knowingly or intentionally recruit, hire, or continue to employ unauthorized immigrants.
The law directly targets private employers and strongly incentivizes companies to enroll in E-Verify under threat of new state-level penalties, which compound with existing federal penalties for violation of verification obligations.
In addition to these employer-specific requirements, the Act adds explicit requirements for law enforcement and detention centers to comply with immigration detainer requests, and calls for state administration officials to send a report to the legislature every year about how many noncitizens are enrolled in certain federal and state benefit programs.
Governmental Body Cooperation with Federal Immigration Enforcement
In practical terms, the Act prohibits governmental bodies and postsecondary institutions from engaging in anything less than near-full cooperation with officials of any level who are enforcing immigration laws.
Specifically, the Act prohibits any governmental body or postsecondary institution from enacting any rule or policy, written or unwritten, that in any way restricts cooperation with, or limits the enforcement of, federal immigration laws.
The Indiana attorney general is empowered to bring actions against governmental bodies or universities for violations, with injunctive relief or potential civil penalties of up to $10,000 per knowing or intentional violation. Courts may also grant "other relief as is necessary to ensure future compliance."
Unlike the private employer-specific provisions outlined in the Act, certain governmental cooperation provisions took effect upon the Act's passage.
Key Employer Provisions
1. Prohibition
Effective July 1, 2026, it is unlawful for an employer to knowingly or intentionally recruit, hire, or continue to employ an individual who is not authorized to work in the United States. While the prohibition does not apply to hiring or recruitment that occurred before July 1, 2026, employers have an obligation to terminate any employee hired before July 1 who is known to lack lawful work authorization.
2. Reasonable Diligence Safe Harbor
An employer is not in violation if it engaged in "reasonable diligence" to confirm work eligibility before recruiting, hiring, or continuing to employ an individual. Reasonable diligence includes: (1) utilizing E-Verify to verify work eligibility; or (2) engaging in diligence consistent with industry-standard best practices.
3. Scope
The Act defines "employer" broadly as any person, including an agent, that employs one or more employees in Indiana. The Act broadly applies to all employers with employees in the state of Indiana.
Enforcement and Penalties against Private Employers
If the Indiana attorney general finds probable cause that an employer violated the law, the attorney general may bring an action to enjoin the violation and seek other relief. For first-time violators, the attorney general must first give notice; the employer then has 15 business days to demonstrate reasonable diligence or submit an affidavit attesting to compliance to prevent the attorney general from filing an official action.
If a court determines that an employer violated the law, the court must order the violative activity halted and may order the following escalating penalties depending on the number of past and current violations:
- a five-business-day suspension of operating authorizations at the location of a single first violation
- a 10-business-day suspension for multiple first violations
- a 180-day suspension or permanent revocation at the location for repeat violators
- a permanent revocation of all Indiana operating authorizations for willful violators with prior violations at three or more locations
Practical Next Steps for Indiana Employers
1. Consider enrolling in E-Verify and auditing hiring practices.
If your organization does not already participate in E-Verify, consider enrolling in the free, web-based program that complements (and does not replace) the Form I-9. Good-faith use of E-Verify or a comparable DHS electronic verification program is the clearest path to a good-faith defense in case of charges stemming from the Act.
2. Review existing workforce.
Employers should also assess whether current verification records are sufficient to demonstrate reasonable diligence for their existing workforce on an ongoing basis. All organizations should audit their Form I-9 practices to ensure they reflect industry best practices and to ensure that no unauthorized workers are currently employed.
3. Train HR personnel.
Ensure that recruiting and hiring staff understand the July 1, 2026, effective date and the new state-law obligations. While federal I-9 laws similarly prohibit employers from knowingly recruiting, hiring, or continuing to employ unauthorized workers, employers with Indiana operations need to assess their current practices to ensure compliance with both federal and Indiana laws related to the verification of employees' work authorization and ongoing obligations related to immigration compliance.
4. Prepare management and HR for new guidance in worksite enforcement actions.
Employers who are governmental entities or postsecondary institutions in Indiana need to prepare HR and other site leaders to comply with the Indiana law as it relates to worksite enforcement actions. Most employers have adopted protocols for responding to an onsite immigration enforcement action, and those protocols should be updated to reflect the Act's requirements for governmental entities or postsecondary institutions to fully cooperate with federal immigration authorities.
5. Seek guidance.
Employers are encouraged to consult with legal counsel regarding E-Verify enrollment, the interaction between federal and Indiana requirements, and the practical implications of the reasonable diligence standard for their specific operations.
For More Information
For further information, you may contact the authors.
Summer associate Jack Fallon contributed to this update.
