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Louisiana ‘Fair Chance’ Law Restricts Employer Discretion in Considering Candidates’ Criminal History

July 29, 2021

Louisiana has joined the growing number of states that have enacted “fair chance” laws that, in general, require employers to evaluate the relationship between a candidate’s criminal history and the duties and responsibilities of the position for which they are being considered before making a hiring decision.

Specifically, Act No. 406/HB 707 (Act 406), which takes effect on August 1, 2021, amends the Louisiana Employment Discrimination Law (LEDL) to impose fair chance requirements. Act 406 applies to any employer in Louisiana, public or private, with 20 or more employees working in the state, that conducts background checks on candidates during the pre-hire process. In addition, Act 406 also limits the types of criminal history information an employer can permissibly consider and requires employers to provide candidates with copies of their background check reports upon request.

EMPLOYER OBLIGATIONS UNDER ACT 406

Act 406 imposes three main obligations on employers that consider criminal history information when making hiring decisions:

  • First, Act 406 prohibits employers from requesting or considering arrests or charges that did not result in a conviction.
  • Second, Act 406 requires employers to conduct an “individual assessment” to determine whether a candidate’s criminal history has “a direct and adverse relationship” to the specific duties of the position at issue. In conducting this assessment, the employer must consider the following factors, which are consistent with those identified by the Equal Employment Opportunity Commission (EEOC) in its 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the Civil Rights Act (also referred to the EEOC’s Green factors):
  • Third, Act 406 requires employers to provide candidates with copies of their background check reports if a candidate submits a written request for this information. Notably, employers must make this information available upon request, regardless of the result of the hiring decision.

COVERED EMPLOYERS AND CANDIDATES

The law applies to candidates in the prehire process exclusively.

Act 406 applies to every employer with 20 or more employees working in Louisiana.

Specifically, the LEDL defines “employer” as “a person, association, legal or commercial entity . . . [with 20 or more employees in the state] receiving services from an employee and, in return, giving compensation of any kind to an employee.” “Employee” is simply defined as “an individual employed by an employer.”

Notably, the law does not define the terms “applicant” or “hiring decision.” However, its use of the terms “applicant” and “hiring decision,” as opposed to “employee” or decisions related to “compensation, or terms, conditions, or privileges of employment,” suggest that Act 406 is intended to protect candidates for employment exclusively, as opposed to current employees.

PENALTIES

The LEDL permits a successful claimant to recover compensatory damages, back pay, benefits, and reinstatement, or if appropriate, front pay, reasonable attorney fees, and court costs. However, a plaintiff who believes they have been discriminated against, and who intends to pursue court action, must give the employer written notice at least 30 days in advance. The notice must detail the alleged discrimination, and both parties must “make a good faith effort to resolve the dispute prior to initiating court action.”

TAKEAWAYS FOR EMPLOYERS

Prior to Act 406, private employers in Louisiana were not subject to any local or state “fair chance” laws. Thus, businesses that employ 20 or more individuals in Louisiana may need to change their prehire processes to ensure compliance with Act 406’s requirements. Specifically, employers should conduct “individual assessments” for Louisiana-based candidates using the EEOC’s Green factors. Employers should also ensure that they do not consider a candidate’s pending charges when making hiring decisions. Finally, employers should review their prehire processes to ensure that all candidates are able to request and receive free copies of their background check reports.

CONTACT

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the author, W. John Lee.