October 18, 2021

Volume XI, Number 291

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October 18, 2021

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Louisiana Enacts Law Impacting Employer Consideration of Applicant Criminal Histories

On June 9, 2021, the Louisiana State Legislature passed House Bill (HB) No. 707, a measure that prohibits discrimination in employment based on criminal history records and that provides criteria for employers making hiring decisions in conjunction with criminal history records. This development will likely be good news for formerly arrested or incarcerated applicants reentering the workplace. Governor John Bel Edwards signed HB 707/Act No. 406 into law on June 16, 2021. The law went into effect on August 1, 2021.

Act No. 406

Act No. 406—now La. R.S. 291.2., section 291.2—specifically states that “[u]nless otherwise provided by law, when making a hiring decision, an employer shall not request or consider an arrest record or charge that did not result in a conviction, if such information is received in the course of a background check.” The statute also states that “[w]hen considering other types of criminal history records, an employer shall make an individual assessment of whether an applicant’s criminal history record has a direct and adverse relationship with the specific duties of the job that may justify denying the applicant the position.” Without explicitly stating so, the new law seems to allow employers to consider conviction records when they might be relevant to the job in question if produced by a background check. An employer may also lawfully consider arrest-related information if obtained from a source other than a background check. Under the law, to make that assessment lawfully, the employer must “consider all of the following”:

  1. “The nature and gravity of the offense or conduct.”

  2. “The time that has elapsed since the offense, conduct, or conviction.”

  3. “The nature of the job sought.”

The statute also requires an employer to “make available to the applicant any background check information used during the hiring process” upon receipt of a written request by the applicant. However, section 291.2 does not require employers to provide notice of the option to request disclosure of information gained from a background check. The Fair Credit Reporting Act includes such a requirement.

Notably, section 291.2 is not a “ban-the-box” law that prohibits private employers from inquiring about an applicants’ criminal histories on employment applications. Instead, section 291.2 permits employers to continue asking for criminal histories, but it prohibits private employers from discriminating based on the information they receive through background checks or application processes.

Federal Law Implications

The U.S. Equal Employment Opportunity Commission (EEOC) issued “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act.” Specifically, the EEOC stated in the guidance that “[a]n employer’s use of an individual’s criminal history in making employment decisions, [such as a hiring decision], may violate the prohibition against employment discrimination under Title VII.” The guidance allows the use of conviction records using the “Green factors,” which are the same three considerations cited in section 291.2.

Compliance Considerations for Louisiana Employers

Given that the federal requirements are nearly identical to those in Louisiana’s statute, employers that have met requirements under federal law will likely not have heightened requirements because of the new Louisiana law. Instead, Louisiana employers can look to the EEOC enforcement guidance for further information regarding best practices to comply with the new Louisiana law. Interestingly, section 291.2 is contained in a statutory chapter providing immunity from negligent hiring and retention claims based on the consideration of an applicant’s history. Neither section 291.2 nor any companion provision expressly creates employer liability for a violation of section 291.2.

Under the EEOC guidance, an employer’s best practices include: (1) “eliminat[ing] policies or practices that [broadly] exclude people from employment based on any criminal record,” (2) “develop[ing] a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct,” and (3) “train[ing] managers, hiring officials, and decisionmakers” on implementing the narrowly tailored policy. Notably, under both federal law and Louisiana law, an employer may still exclude individuals with criminal histories but the employer must demonstrate that the policy is “job related and consistent with a business necessity.”

Key Takeaways

The new law applies to criminal background information revealed through a background check. Thus, section 291.2 (former HB 707/Act No. 406) does not apply to information revealed through other means, such as an interview or an application. With the law taking effect on August 1, 2021, employers may want to consider incorporating its requirements into their screening processes for applicants.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 218
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About this Author

Andrew P. Burnside, Ogletree Deakins, Employment Law Matters Lawyer, Trade Secrets Attorney
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Drew Burnside represents employers in federal and state courts, as well as federal and state administrative agencies, in employment law matters. Drew is admitted in Louisiana and Texas.

Drew has received an “AV” Preeminent Peer Review Rating by Martindale-Hubbell and was on the editorial board of Tulane Maritime Law Journal at Tulane University. He is a chapter editor of and contributing author to The Family and Medical Leave Act treatise, published by BNA. Drew also was contributing author to The Developing Labor Law (3rd ed. BNA).

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504-648-2609
Ellen Rains, Ogletree Deakins Law Firm, New Orleans, Labor and Employment Law Attorney
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Ellen’s practice focuses on representing employers in a variety of employment law matters. A skilled litigator, Ellen devotes a substantial amount of her practice to employment litigation. She defends employers in administrative proceedings before the EEOC and other government agencies, and in litigation at the state and federal court level with respect to employment discrimination, harassment, and retaliation claims, as well as restrictive covenant, wage and hour, and other contract- and tort-based actions. Ellen Rains is a member of the employment law, higher education...

504-648-3840
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