Louisiana Employers Now Subject To “Fair Chance” Law – Employment and HR

United States:

Employers in Louisiana are now governed by fair opportunity law

August 04, 2021

Seyfarth Shaw LLP

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Seyfarth Synopsis: On June 16, 2021, Louisiana joined the growing list of states and localities with “fair chance” laws by enacting a law of their own that restricted employers’ consideration of criminal history when making recruitment decisions. Beginning August 1, 2021, Louisiana employers should consider immediately reviewing their criminal history review policies to ensure compliance with the new law.

First, unless otherwise required by law, Louisiana now prohibits employers (with 20 or more employees in the state) from examining an arrest record or an unconvicted charge if the information was “obtained in the course of a background” check. “

Regarding the consideration of convictions, the new law adopts as a requirement the Equal Employment Opportunity Commission (EEOC) framework for determining whether a conviction is work-related, as outlined in its 2012 Guidelines on Enforcement of Convictions and Arrests. Particularly when it comes to convictions, Louisiana employers are now required to conduct an individual assessment of whether an applicant’s criminal record is directly and adversely related to the specific duties of the job that may warrant denial of the applicant. In making this assessment, the employer must take into account:

• the nature and gravity of the offense or conduct;
• the time that has elapsed since the offense, conduct or conviction; and
• the type of job sought.

Although Louisiana law does not include the EEOC’s suggested factors for conducting this assessment, these factors typically help employers in this regard. Specifically, the EEOC suggests considering:

• the facts or circumstances related to the offense or conduct;
• the number of offenses for which the person has been convicted;
• older age at the time of conviction or release from prison;
• Evidence that after the conviction the person performed the same type of work for the same or a different employer without any criminal incident being known;
• the length and consistency of the employment history before and after the crime or behavior;
• Rehabilitation efforts (e.g. education / training);
• Job or character references and any other information relevant to suitability for the position; and
• whether the individual is bound under a federal, state, or local loyalty program.

While the Federal Fair Credit Reporting Act requires employers considering taking negative action in whole or in part based on information from a background check report, Louisiana law allows the applicant to provide a copy of the report before actually taking action an applicant also has the right to submit a written request for “any background check information used during the recruitment process”. Therefore, when an applicant makes such a request, the employer must provide a copy of the report and any other information that the employer took into account in making its decision (e.g. online searches, searches of public registry courts, etc.).

An injured applicant can sue the employer if he gives the employer 30 days in writing, which must explain the reasons for the alleged violation. The claimant and employer must then “use good faith efforts to resolve the dispute before legal proceedings are initiated”. If that fails and the applicant can demonstrate a violation of the law, the applicant may receive the full amount of damages, including damages, backpayment, reinstatement, and legal fees and costs.

Employers in all jurisdictions should consider a privileged review of their hiring and recruitment practices from an experienced attorney. Aside from the EEOC guidelines and this new Louisiana law, many other states and towns have their own laws regarding “job-related” requirements for an employer to use criminal information, including California, New York, Pennsylvania and Wisconsin and many others . With few exceptions, some states, counties, and cities do not even allow employers to inquire about criminal record information, including ordering a criminal background check report from a background check provider (“Consumer Reporting”. Agency “), when applying for a job or prior to a conditional offer. .

Additionally, employers continue to be the subject of FCRA class action lawsuits because of the process they use to obtain and make decisions based on background check information obtained from a consumer reporting agency. As such, employers would be well advised to review their use of criminal history and other background information to ensure compliance with the FCRA, similar federal fair credit reporting laws, and substantive labor laws.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.

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