Seyfarth Synopsis: On June 16, 2021, Louisiana joined the growing list of states and localities with so-called “Fair Chance” laws by enacting its own law restricting an employer’s consideration of criminal history in hiring decisions. With an effective date of August 1, 2021, Louisiana employers should consider an immediate review of their criminal history screening policies to ensure compliance with the new law.
First, unless otherwise provided by law, Louisiana now prohibits employers (those with 20 or more employees in the state) from considering an arrest record or a charge that did not result in a conviction if the information was “received in the course of a background check.”
Next, in terms of considering convictions, the new law adopts as a requirement the Equal Employment Opportunity Commission’s (EEOC) framework for determining whether a conviction is job-related as set out in its 2012 Enforcement Guidance on consideration of convictions and arrests. Specifically, when considering convictions, Louisiana employers now must conduct an individualized 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. When making this assessment, the employer must consider:
- the nature and gravity of the offense or conduct;
- the time that has elapsed since the offense, conduct, or conviction; and
- the nature of the job sought.
While the Louisiana law does not include the EEOC’s suggested factors for conducting this assessment, those factors are typically helpful to employers in this regard. Specifically, the EEOC suggests considering:
- the facts or circumstances surrounding the offense or conduct;
- the number of offenses for which the individual was convicted;
- older age at the time of conviction or release from prison;
- evidence that the individual performed the same type of work, post-conviction, with the same or a different employer, with no known incidents of criminal conduct;
- the length and consistency of employment history before and after the offense or conduct;
- rehabilitation efforts (e.g., education/training);
- employment or character references and any other information regarding fitness for the particular position; and
- whether the individual is bonded under a federal, state, or local bonding program.
While the federal Fair Credit Reporting Act requires that employers considering taking adverse action based in whole or in part on information contained in a background check report provide a copy of the report to the applicant before actually taking action, the Louisiana law also allows an applicant the right to make a written request for “any background check information used during the hiring process.” Thus, if an applicant makes such a request, the employer must provide a copy of the report and any other information the employer considered in making its decision (e.g., online searches, public record court searches, etc.).
An aggrieved applicant can bring an action against the employer provided he or she gives the employer 30 days written notice, which must explain the basis for the alleged violation. The applicant and employer must then “make a good faith effort to resolve the dispute prior to initiating court action.” If that fails, and if the applicant succeeds in proving a violation of the law, the applicant could receive the full range of damages, including compensatory damages, back pay, reinstatement, and attorney’s fees and costs.
Employers in all jurisdictions should consider a privileged review of their pre-employment and hiring practices by experienced counsel. Setting aside the EEOC’s guidance and this new Louisiana law, many other states and localities have their own laws concerning “job relatedness” requirements for an employer's use of criminal history information, including California, New York, Pennsylvania, and Wisconsin, among many others. Further, subject to narrow exceptions, some states, counties and cities do not even permit employers to inquire about criminal history information on a job application or before a conditional offer, including ordering a criminal background check report from a background check provider (“consumer reporting agency”).
In addition, employers continue to be targeted in FCRA class action lawsuits over the process they use to obtain and make decisions based on background check information obtained from a consumer report agency. As a result, employers are well advised to consider evaluating their use of criminal history information and any other background check information to ensure compliance with the FCRA, similar state fair credit reporting statutes and substantive employment laws.