Delph Bill Would Punish Some Indiana Employers Who Hire Undocumented Aliens

Sen. Mike Delph (R-Carmel) has introduced SB 285 in an effort to block some employers in Indiana which employ undocumented aliens from doing business within the state. I say some employers because the bill expressly exempts the following employers: public utilities; hospitals; nonprofit corporations; and ambulance providers. An employer may be barred from doing business in the state if it: (1) transacts business in Indiana; (2) has a license issued by an Indiana agency; and (3) employs one or more individuals who perform services in Indiana. So if you can operate a business without the need to obtain a license from the state, you are exempt from it as well.

The enforcement provisions of this law make its constitutionality suspect. The U.S. Constitution empowers only Congress to regulate immigration, although the U.S. Supreme Court upheld the constitutionality of a similar Arizona law. Delph's legislation makes Indiana's attorney general responsible for enforcing the law based on complaints it receives. If the attorney general's investigation of a complaint determines an employer violated the law, he is required to notify the following: USCIS; local law enforcement agencies; and the prosecuting attorney's office. The legislation says the prosecuting attorney may bring a civil action requesting a hearing be conducted to determine if the employer broke the law. The permissive nature of this enforcement mechanism suggests to me that many prosecuting attorneys would elect against bringing enforcement actions, thereby creating a disparity across the state in prosecuting violations under the law.

A court hearing an enforcement action that finds against an employer can: (1) order the employer to terminate the employment of all unauthorized aliens; (2) place the employer on probation for a 3-year period during which it is required to file quarterly reports showing compliance with the order with the attorney general; and require the employer to sign a sworn affidavit within 30 days of the order stating it has complied with the order. If an employer is found to have violated the law a second chance, a court can place it on probation for a period of up to 10 years. Get caught a third time and the court can order the appropriate state agencies to revoke the employer's license or licences to conduct business in Indiana. Businesses that use E-Verify to verify their employees' status would be immune from prosecution under the law.

The proposed law would clearly put Indiana law in conflict with current enforcement guidelines of federal agencies responsible for enforcement of immigration laws adopted by the Obama administration, which send very mixed signals to employers. Employers would run the risk of either complying with the state law or face the wrath of the federal government for discriminating against alien workers. Not surprisingly, the Indiana Chamber of Commerce tells the Indianapolis Star it vehemently opposes the legislation. Indiana already has a law that permits the state to deny tax breaks to employers which employ undocumented aliens, although I'm unaware of any employers who have been sanctioned under that law.

Speaking of immigration, I had the opportunity to view the oral argument in a case I previously discussed, Escamilla v. Shiel Sexton Co., a case involving an undocumented employee of a subcontractor working on one of the general contractor's work sites who sustained a permanent injury while on the job. As general contractor, Shiel Sexton assumed responsibility for all employee's safety who worked at the job site. It wants to offer evidence of Escamilla's immigration status to limit any potential recovery he might have for lost wages, assuming he is ever ordered removed to Mexico where his potential earning capacity would be much less than if he remained in the U.S. permanently. Escamilla's attorneys believe allowing the jury to hear his evidence of his immigration status would be prejudicial, and a public policy argument against rewarding employers who knowingly employ undocumented workers.

Attorneys for Shiel Sexton indicated that Escamilla had provided only a Mexican driver's license and a social security number belonging to someone else when he started working for its subcontractor. The facts presented by Escamilla's attorney indicated a strong likelihood that he is on a path to legalized status. He was brought to this country when he was only 14 years old, is married to a U.S. citizen and has three U.S. citizen children. Escamilla's immigration attorney had presented evidence that his wife has filed to sponsor him for an immigration benefit. Escamilla had not yet obtained work authorization. The Obama administration has administratively permitted certain early childhood arrivals like Escamilla to obtain work authorization under a program known as Deferred Action for Childhood Arrivals ("DACA"). It wasn't clear from the discussion whether Escamilla was eligible for that program, or whether he just didn't want to spend the money to pay the filing fee for work authorization.

I was a bit confused by the evidence, which claimed his attorney had a pending I-485 adjustment of status petition on file for him. Based on these facts, Escamilla would not be eligible to file an I-485 and adjust status within the U.S.; rather, his wife could file an I-130 immigrant petition to sponsor him, and upon approval of that petition, he could file for a provisional hardship waiver on a Form I-601(A) that would permit him to apply to immigrate to this country, notwithstanding his unauthorized entry and period of stay in the U.S. Once his hardship waiver is approved, which is more than likely under these circumstance, he would be eligible to file an immigrant visa application (Form DS-260) for consular processing. Escamilla would be required to exit the country for his immigrant visa interview and then be allowed to re-enter the country lawfully as a permanent resident if his application is approved.

It's difficult to predict how the Court of Appeals will rule. It didn't sound like either Judge May or Judge Bradford were very sympathetic to Escamilla's arguments. Judge Baker seemed more receptive to his attorney's arguments. If they don't rule in favor of Escamilla, there will be an anomaly in Indiana law where his immigration status for purposes of calculating the extent of his damages would be deemed prejudicial in a personal injury action and kept from the jury but not in a work-related injury case where the employer would seem to get its cake and eat it too.