October 20, 2021

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Louisiana Enacts Legislation Impacting Employer Thought of Applicant Criminal Histories | Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

On June 9, 2021, the Louisiana Condition Legislature handed Home Monthly bill (HB) No. 707, a measure that prohibits discrimination in employment centered on prison heritage documents and that gives criteria for businesses making choosing decisions in conjunction with felony historical past information. This development will most likely be great information for previously arrested or incarcerated candidates reentering the place of work. Governor John Bel Edwards signed HB 707/Act No. 406 into legislation on June 16, 2021. The regulation went into outcome on August 1, 2021.

Act No. 406

Act No. 406—now La. R.S. 291.2., part 291.2—specifically states that “[u]nless normally delivered by regulation, when producing a choosing selection, an employer shall not ask for or consider an arrest record or demand that did not end result in a conviction, if such details is obtained in the training course of a history check.” The statute also states that “[w]hen thinking about other styles of criminal historical past information, an employer shall make an personal evaluation of whether an applicant’s felony heritage file has a direct and adverse partnership with the particular duties of the career that may justify denying the applicant the posture.” Without the need of explicitly stating so, the new regulation looks to allow employers to look at conviction data when they may well be pertinent to the position in concern if developed by a history examine. An employer may well also lawfully take into account arrest-linked data if obtained from a resource other than a track record check. Below the regulation, to make that evaluation lawfully, the employer will have to “consider all of the following”:

  1. “The nature and gravity of the offense or perform.”
  2. “The time that has elapsed due to the fact the offense, perform, or conviction.”
  3. “The nature of the career sought.”

The statute also requires an employer to “make offered to the applicant any track record test details utilised all through the hiring process” upon receipt of a written ask for by the applicant. On the other hand, portion 291.2 does not require businesses to present see of the possibility to ask for disclosure of information and facts received from a background verify. The Honest Credit Reporting Act contains these kinds of a requirement.

Notably, area 291.2 is not a “ban-the-box” legislation that prohibits personal employers from inquiring about an applicants’ legal histories on employment programs. In its place, part 291.2 permits companies to continue inquiring for criminal histories, but it prohibits personal companies from discriminating primarily based on the details they acquire by way of history checks or software processes.

Federal Legislation Implications

The U.S. Equivalent Work Prospect Commission (EEOC) issued “Enforcement Advice on the Thought of Arrest and Conviction Documents in Work Choices beneath Title VII of the Civil Rights Act.” Specifically, the EEOC stated in the assistance that “[a]n employer’s use of an individual’s felony record in making work conclusions, [such as a hiring decision], may possibly violate the prohibition in opposition to work discrimination beneath Title VII.” The advice makes it possible for the use of conviction information making use of the “Green components,” which are the same a few considerations cited in area 291.2.

Compliance Things to consider for Louisiana Companies

Presented that the federal requirements are almost equivalent to individuals in Louisiana’s statute, employers that have satisfied necessities underneath federal legislation will very likely not have heightened requirements for the reason that of the new Louisiana law. Alternatively, Louisiana employers can look to the EEOC enforcement advice for even more information and facts with regards to most effective practices to comply with the new Louisiana legislation. Apparently, section 291.2 is contained in a statutory chapter supplying immunity from negligent hiring and retention statements based mostly on the consideration of an applicant’s heritage. Neither portion 291.2 nor any companion provision expressly results in employer liability for a violation of segment 291.2.

Less than the EEOC direction, an employer’s ideal methods involve: (1) “eliminat[ing] insurance policies or methods that [broadly] exclude folks from work dependent on any criminal report,” (2) “develop[ing] a narrowly tailor-made created plan and process for screening candidates and personnel for criminal perform,” and (3) “train[ing] managers, selecting officials, and decisionmakers” on employing the narrowly tailor-made coverage. Notably, under each federal regulation and Louisiana law, an employer may well nonetheless exclude people with felony histories but the employer need to demonstrate that the coverage is “job linked and reliable with a business requirement.”

Critical Takeaways

The new legislation applies to criminal background information exposed by a history verify. Thus, segment 291.2 (former HB 707/Act No. 406) does not utilize to facts revealed by way of other indicates, this kind of as an interview or an application. With the legislation using influence on August 1, 2021, companies might want to take into consideration incorporating its prerequisites into their screening procedures for applicants.