What are the requirements relating to advertising open positions?
(a)Criminal records and arrests
This summary is restricted to the general coverage of laws and regulations affecting private employers’ access to and use of criminal records; it does not include occupation- and industry-specific legal requirements, such as laws mandating state or national criminal records checks to screen applicants.
Any employer in Indiana can request state criminal records checks to screen applicants. To request state criminal background checks, employers must contact the Indiana State Police Department’s Central Records Division. Employers that need national checks can ask the records repository to forward their requests to the Federal Bureau of Investigation. The State of Indiana does not have a “ban-the-box” statute, and Indiana local government entities are not allowed to pass local ordinances that prohibit employers from asking about criminal convictions on an employment application or at any stage during the hiring process.
It is unlawful discrimination for an employer to refuse to employ someone because of an expunged conviction or arrest record. Employees arrested or convicted of certain crimes can have their records sealed.
Employers cannot inquire into expunged records and will not be held liable for the information that was unavailable to them. Employers must treat expunged criminal records as if there has never been a conviction. Any person that discriminates against someone on this basis commits a Class C infraction and may be held in contempt.
Indiana has no specific statute restricting inquiries into medical history in the employment setting. Private employers can generally test job applicants and employees for drugs, alcohol, and other controlled substances in accordance with the requirements of the Americans with Disabilities Act and the Indiana Civil Rights Law.
Indiana has no specific statute restricting drug tests. Private employers can generally test job applicants and employees for drugs, alcohol, and other controlled substances in accordance with the requirements of the Americans with Disabilities Act and the Indiana Civil Rights Act.
Employers in specific industries (such as transportation) and employers that do business with governmental agencies may be required to establish drug-free policies and/or test for certain drugs. Unionized employers must bargain for the right to test before they may test employees who are represented by the union.
In 2018, Indiana legalized CBD oil containing less than 0.3 percent THC. When conducting drug tests, employers are not required to accommodate employees who are flagged for THC due to CBD oil use.
Indiana has no specific statute restricting credit checks in the employment setting. Private employers can generally perform credit checks on employees and applicants in accordance with the requirements of federal law, such as the Fair Credit Reporting Act and Title VII.
Indiana has no statute regarding immigration status that is generally applicable to private sector employers. But all Indiana agencies and political subdivisions are required to use the federal E-Verify program to check the work eligibility status of all employees hired after June 30, 2011.
After June 30, 2015, a public agency cannot enter into or renew a contract for a public works project with a contractor unless:
- the contract contains a provision:
- requiring the contractor to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the E-Verify program; or
- that provides that a contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the E-Verify program if the program no longer exists; and
- the contractor signs an affidavit affirming that the contractor does not knowingly employ an unauthorized alien.
If a contractor uses a subcontractor to provide services for work, the contractor is performing under a public contract for services or a contract for a public works project. At the time of certification, the subcontractor must certify to the contractor in a manner consistent with federal law, that the subcontractor:
- does not knowingly employ or contract with an unauthorized alien; and
- has enrolled and is participating in the E-Verify program.
Indiana has no state laws protecting social-media passwords in the employment context.
An employer doing business in Indiana cannot:
- require an applicant for employment or an employee to disclose information about whether the applicant or employee owns, possesses, uses, or transports a firearm or ammunition, unless the disclosure concerns the possession, use, or transportation of a firearm or ammunition that is used in fulfilling the duties of the employment of the individual; or
- condition employment, or any rights, benefits, privileges, or opportunities offered by the employment, on an agreement that the applicant for employment or the employee forego:
- the rights of the applicant or employee; or
- the otherwise lawful ownership, possession, storage, transportation, or use of a firearm or ammunition.
Employers may not require as a condition of employment that an employee or prospective employee refrain from using tobacco products outside the course of employment.
Wage and hourPay
What are the main sources of wage and hour laws in your state?
Indiana has two primary sources for wage and hour laws:
- the Wage Payment Statute, which governs claims by current employees or those employees who have voluntarily left employment (Ind. Code Ann. § 22-2-5-1); and
- the Wage Claims Statute, which governs claims by employees who have been involuntarily separated or are out of work as a result of a labor dispute (Ind. Code Ann. § 22-2-9-2).
Indiana also has a minimum wage and overtime statute that tracks the requirements of the Fair Labor Standards Act (FLSA). Indiana employers covered by the FLSA are not covered by Indiana’s minimum wage and overtime statutes.
Indiana requires that every employer pay each employee at least semimonthly or biweekly, if requested, the amount due the employee. Payment must be made for all wages earned to a date not more than 10 business days prior to the date of payment.
What is the minimum hourly wage?
Indiana’s minimum hourly wage is $7.25. This wage applies to employers having two or more employees in any workweek. Indiana’s minimum hourly wage is the same as the federal minimum hourly wage, and Indiana’s wage increases automatically with the federal wage. Indiana units of local government are prohibited from enacting ordinances requiring a minimum wage in excess of the state or federal minimum wage (Ind. Code Ann. § 22-2-2-10.5).
There are living wage requirements in Gary, Indiana, and Bloomington, Indiana. Effective July 1, 2011, unless federal or state law provides otherwise, a county, municipality, or township may not establish, mandate, or otherwise require a minimum wage that exceeds the state or federal minimum hourly wage rates. But, this restriction does not limit the authority of a county, municipality, or township to establish wage rates in a contract to which it is a party.
Generally, employers must pay tipped employees $2.13 per hour plus tips. If additional pay is needed to make up any difference between an employee’s reported tips and the minimum wage, the employer must pay that amount. Total hourly pay, including tips, cannot be less than $7.25 per hour.
Employers may pay $4.25 per hour for employees under 20 years of age for the first 90 days of employment, but an employer may not displace employees or otherwise reduce hours, wages, or benefits to hire individuals at the lower rate.
Contractors working on Common Construction Wage projects awarded prior to July 1, 2015, must continue to comply with the Common Construction Wage Act as it existed prior to the repeal, and workers must be paid at or above the established wage and fringe benefit rates for the duration of the project.
What are the rules applicable to final pay and deductions from wages?Indiana’s final-pay rules
Indiana employers must pay terminated employees their final wages at the time of separation or no later than their next regularly scheduled payday. This rule does not apply to railroad employees.
Indiana employers must pay employees who voluntarily quit their final wages at the time of separation or no later than their next regularly scheduled payday. If an employee quits and does not provide the employer with their future whereabouts, the employer is not subject to a penalty until either:
- 10 business days have elapsed after the employee has made a demand for wages; or
- the employee has furnished the employer with the employee’s address where the wages may be sent or forwarded.
The following are exempt from Indiana’s final pay rules:
- salaried employees eligible for overtime compensation;
- farmers and those engaged in agriculture and horticulture business; and
- criminal offenders in a facility operated by the Department of Correction.
Indiana’s wage-deduction rules
Indiana employers may not fine an employee and deduct the amount from the employee’s wages. But, employers may deduct the amount of an overpayment from an employee’s paycheck, provided that the following conditions are met:
- The employer gives the employee two weeks’ notice before making the deduction.
- The amount of the deduction does not exceed the lesser of 25 per cent of the employee’s disposable earnings for that week or the amount by which the employee’s disposable earnings for that week exceed 30 times the federal minimum hourly wage in effect at the time the earnings are payable.
- If a single gross wage overpayment is equal to 10 times the employee’s gross wages earned due to an inadvertent misplacement of a decimal point, the entire overpayment may be deducted immediately.
Indiana employers may deduct additional amounts from an employee’s paycheck when the following three conditions are satisfied:
- The agreement for the deduction is in writing, signed by the employee, by its terms revocable at any time by the employee on written notice, and agreed to in writing by the employer.
- A copy of the deduction agreement is delivered to the employer within 10 days of its execution.
- The deduction falls in one of the following approved categories:
- premiums on an insurance policy obtained for the employee by the employer;
- contributions to a charitable organization;
- purchase price of bonds, securities, or stock of the employing company;
- labor union dues;
- purchase price of merchandise sold by the employer to the employee;
- amount of loan made to the employee by the employer;
- employee contributions to a hospital service or medical expense plan;
- payment to an employee’s direct deposit account;
- payment to a credit union, nonprofit, or association of employees of the employer organized under any law of Indiana or of the United States;
- premiums on policies of insurance and annuities purchased by the employee on the employee’s life;
- purchase price of shares or fractional interest in mutual fund shares;
- a judgment owed by the employee if the payment (1) is made in accordance with an agreement between the employee and the creditor and (2) is not a garnishment;
- uniform or equipment purchase, rental, or use necessary to fulfill the duties of employment;
- reimbursement for education or employee skills training;
- an advance for payroll or vacation pay;
- the employee’s drug education and addiction treatment services; or
- merchandise, goods, or food offered by the employer, for the employee’s benefit, at the written request of the employee.
What are the requirements for meal and rest breaks?
Indiana has no requirements for rest breaks, meal breaks, or other breaks for adult employees. Indiana previously required employers to give minor employees who work six or more hours in a shift one or two breaks totaling at least 30 minutes. These breaks may be taken at any point during the minor’s shift. Employers must maintain break logs to document all breaks provided to minor employees.
Other categories of workers who may be entitled to breaks include:
- public employees;
- contract-carrier drivers; and
- nursing mothers.
Indiana requires paid lactation breaks for public employees. Private employers are not required to provide paid breaks for expressing breast milk. Employers must make a reasonable effort to provide a location other than a toilet stall for an employee to express breast milk in private during any period away from the employee’s assigned duties and a refrigerator or other cold storage space (or allow the employee to bring her own portable storage device) for storing the expressed milk until the end of the work day.
What are the maximum hour rules?
Generally, Indiana has no maximum-hour rules governing employment. However, it does have specific maximum-hour laws governing:
- contract-carrier drivers transporting railroad employees (Ind. Code Ann. § 8-9-11-3);
- the employment of children (Ind. Code Ann. § 22-2-18-30 to -40); and
- public utility employees (Ind. Code Ann. § 8-1-8.3-6).
In 2020, Governor Holcomb signed a law that modified Indiana’s law regarding the employment of minors:
- Certain break requirements have been eliminated.
- Hour restrictions for 16- and 17-year-old minors have been simplified and are the same now. The Indiana Department of Labor has issued a new poster relating to the employment of minors and a new simplified parental permission form.
- Indiana law for 14- and 15-year-old minors reverts to the law prior to July 1, 2018. Indiana, once again, mirrors federal law. But, Indiana has added the restriction of not allowing a 14- or 15-year-old minor to work after 7:00 p.m. on any night that is followed by a school day, except between June 1 and Labor Day, when minors may work until 9:00 p.m.
- A minor who is at least 16 years of age and less than 18 years of age may not work for more than nine hours in any one day, 40 hours in a school week, 48 hours in a non-school week, and six days in any one week.
- Restrictions prohibiting 16- and 17-year-old minors from working during school hours of 7:30 a.m. to 3:30 p.m. without school permission have been removed. Restrictions, however, continue to apply to 14- and 15-year-old minors, as this is federal law.
- Written parental permission is only required for minors (16 and 17) working until 11:00 p.m. on a night followed by a school day. All other parental permissions have been eliminated.
- Minors (16 and 17) may not work in an establishment open to the public after 10:00 p.m. or before 6:00 a.m. unless another employee at least 18 years of age also works during the same hours as the minor.
Indiana’s law relating to the employment of minors requires posting of a poster, which is available on the Indiana Department of Labor’s website at https://www.in.gov/dol/files/YouthEmployment_teenWorkHourRestrictionsPoster.pdf.
How should overtime be calculated?
Overtime should be calculated by multiplying an employee’s “compensatory time” by the product of a rate not less one-and-a-half times the employee’s “regular rate.” “Compensatory time” means the number of hours an employee work in excess of 40 hours. “Regular rate” means the rate at which an employee is employed and includes “all remuneration for employment paid to, or on behalf of, the employer.”
An employee’s “regular rate” does not include:
- sums paid as gifts or rewards;
- payments made for vacation, holiday, illness, or other similar cause, other reimbursable payments, and other payments which are not made as compensation for an employee’s hours of employment;
- sums paid in recognition of services performed, including end-of-contract bonuses, payments for a good-faith share plan, or talent fees;
- contributions made to old age, retirement, life, accident, or health insurance plans;
- extra compensation for working longer than an eight-hour day;
- extra compensation for working on Saturdays, Sundays, and holidays; or
- any other extra compensation for working outside of established hours.
What exemptions are there from overtime?
The following are exempt from the Indiana Minimum Wage Law overtime requirement:
- under 16s;
- independent contractors;
- individuals performing services not in the course of the employer’s trade or business;
- individuals employed on a commission basis;
- individuals employed by their own parent, spouse, or child;
- individuals performing services for a religious order or volunteers for a religious or charitable organization;
- student nurses or students apprenticing as funeral directors or embalmers;
- interns or resident physicians at duly accredited hospitals;
- students performing services for any school, college, or university in which they are enrolled and are regularly attending classes;
- individuals who are physically or mentally disabled and performing services for certain non-profit organizations;
- insurance producers, insurance solicitors, and outside salesman, who are compensated solely by commission;
- individuals performing services for camping, recreational, or guidance facilities operated by a charitable, religious, or education non-profit;
- individuals engaged in certain agricultural labor;
- individuals employed at a motion picture theater;
- individuals employed in executive, administrative, or professional occupations, with the authority to employ or discharge, and who earn $150 or more a week;
- individuals not employed for more than four weeks in any four consecutive three-month periods; and
- individuals covered under the federal Motor Carrier Act 1935.
What payroll and payment records must be maintained?
Indiana employers must furnish each employee a statement of the following:
- hours worked by the employee;
- the wages paid to the employee; and
- a listing of deductions made.
An employer’s wage records must be open to inspection by the commissioner of labor at any reasonable time. An employer that fails to keep payroll and payment records will be subject to penalties.